SURVEYING  AND  BOUNDARIES 


A  TREATISE 

on  the 

LAW  OF  SURVEYING 
AND  BOUNDARIES 


By 

FRANK  EMERSON  CLARK 
of  the  Minnesota  Bar 


INDIANAPOLIS 

THE  BOBBS-MERRILL  COMPANY 
PUBLISHERS 


COPYRIGHT,  1922 
BY  THE  BOBBS-MEEBILL  COMPANY 


TO 
THE  MEMORY 

OF 
MY  FATHER 

Whose  great  natural  ability  and  consistent  search  for  truth 
*  will  ever  be  my  inspiration. 

THIS  BOOK  IS  REVERENTLY  DEDICATED 


403398 

ill 


PREFACE 


The  underlying  idea  of  this  work  had  its  birth  in  the  neces- 
sity for  such  a  help  that  the  author  discovered  in  a  somewhat 
extended  experience  as  a  public  and  private  surveyor  and  later 
as  a  practicing  lawyer  often  called  upon  to  investigate  land  titles. 
So  far  as  the  author  is  informed  no  similar  work  has  heretofore 
been  published. 

The  work  sets  forth  the  laws  pertaining  to  surveying  and 
boundaries  and  discusses  the  problems  arising  in  the  surveying 
and  legal  professions  with  reference  to  the  location  and  settle- 
ment of  boundaries.  It  furnishes  the  surveyor  and  attorney  a 
ready  reference  to  the  acts  of  Congress  providing  for  a  survey  of 
the  public  lands ;  the  Instructions  of  the  Surveyor-General  to  his 
deputies  in  executing  public  surveys;  the  suggestions  to  private 
surveyors  sent  out  by  the  Commissioner  of  the  General  Land 
Office  from  time  to  time  pertaining  to  the  subdivisions  of  sections 
and  the  restoration  of  lost  or  obliterated  corners ;  and  the  decis- 
ions handed  down  by  the  courts  pertaining  to  the  various  phases 
of  the  subject  of  the  work. 

Of  special  interest  is  the  chapter  pertaining  to  riparian  rights 
and  the  division  of  accretion  among  the  several  riparian  owners. 
That  chapter  deals  at  length  with  all  those  riparian  rights  with 
which  the  surveyor  and  attorney  are  constantly  coming  in  contact. 
Numbers  of  lakes  in  some  of  the  western  states  are  constantly 
drying  up  and  the  waters  receding.  Questions  pertaining  to  the 
proper  division  of  the  boundary  line  between  two  owners  of 
piers  and  their  respective  rights  are  of  frequent  occurrence  in 
our  cities.  How  are  those  lake  beds  to  be  divided  between  ripa- 
rian proprietors  ?  How  should  the  pier  line  boundaries  be  run  ? 
How  should  cove  flats  be  divided? 

The  chapter  on  "Some  Usual  and  Unusual  Questions 
Answered"  treats  at  length  the  problems  encountered  by  the 
surveyor  in  actual  practice  and  advises  the  proper  procedure  in 
solving  those  problems.  Likewise  the  chapter  on  "Restoration  of 
Lost  or  Obliterated  Corners"  deals  at  length  with  that  most  im- 
portant subject,  citing  authorities  in  each  instance  as  a  basis  for 

the  rule  laid  down. 

v 


VI  PREFACE 

Other  important  divisions  of  the  work  will  be  found  in  the 
chapters  treating  of  "Identification  of  Tract,"  and  "Evidence  of 
Location  of  Corners  or  Lines."  Naturally  those  chapters  deal 
with  the  law  of  Evidence  as  pertains  to  corners  and  boundaries. 
That  law  is  carefully  digested  and  numerous  decisions  of  the 
courts  are  cited  to  the  propositions  under  consideration. 

The  numerous  diagrams  and  illustrations  are  intended  to 
make  plain  the  particular  proposition  under  consideration.  Many 
of  the  diagrams  are  taken  from  adjudicated  cases  and  should  be 
studied  in  connection  with  the  discussion  of  those  cases. 

The  first  eight  chapters  of  the  work  apply  especially  to  all 
states  having  the  rectangular  system  of  surveying.  They  do  not 
apply  to  the  thirteen  original  states.  The  succeeding  seventeen 
chapters  are  applicable  to  all  the  states,  whether  the  survey  was 
made  under  the  rectangular  system  or  under  the  old  metes  and 
bounds  systems  followed  in  the  survey  of  the  thirteen  original 
states. 

The  author  submits  the  result  of  his  labors  in  the  belief  that 
he  has  wrought  out  a  work  that  will  aid  the  surveyor  in  executing 
difficult  surveys  and  will  furnish  the  attorney  a  ready  reference 
to  the  laws  and  decisions  of  the  court  on  a  subject  of  large 
importance. 

FRANK  EMERSON  CLARK. 
Minneapolis,  Minnesota, 
November  1st,  1922. 


TABLE  OF  CONTENTS 


CHAPTER  I 

LAND  SURVEYING 
Section 

1.  Generally. 

2.  History. 

3.  Metes  and  bounds. 

4.  The  rectangular  system. 

5.  Fixed  monuments. 

6.  Courses. 

7.  Distances. 

8.  Courses  and  distances  yield  to  fixed  monuments. 

9.  Retracing  lost  lines. 

10.  To  run  out  old  lines  where  none  of  the  original   monuments 

can  be  found. 

11.  When  no  original  monument  can  be  found. 

12.  Instruments  and  chains  or  tapes. 

13.  Old  surveys  presumed  correct. 

14.  Witness  trees. 

15.  Corners. 

16.  Corners  marked  by  mounds  and  pits. 

17.  Where  mounds  and  pits  are  destroyed. 

18.  Caution. 

19.  What  this  work  intended  to  be. 

CHAPTER  II 

THE  SURVEY  OF  PUBLIC  LANDS 
Section 

20.  Generally. 

21.  Meridian  lines. 

22.  Parallels  of  latitude. 

23.  Base  line. 

24.  Principal  meridian. 

25.  Townships. 

26.  Guide  meridians. 

27.  Standard  parallels. 

28.  Ranges. 

29.  Sections. 

30.  Sections,  how  numbered. 

31.  Originally  townships  were  seven  miles  square. 

32.  Reduction  of  size  of  township. 

33.  Surveyor-general. 

34.  Subdividing  into  half  sections. 

35.  Corners  and  quarter-lines. 

36.  General  land  office  established. 

37.  Sale  of  public  lands. 

38.  Special  rules  for  survey  of  water  frontage. 

vii 


vlll  TABLE  OF  CONTENTS 

Section 

39.  Subdivision  of  sections  and  quarter-sections. 

40.  Reorganization  of  general  land  office. 

41.  System  of  designating  corners 

42.  Designations  of  corners'  subdividing  sections. 

43.  Material  of  monuments. 

44.  The  contract  system  and  a  permanent  corps. 

45.  General  rules  founded  on  congressional  legislation. 

CHAPTER  III 

SURVEYS  AND  SURVEYORS 
Section 

46.  Generally. 

47.  Completion  of  survey. 

48.  Surveyors-general:    Powers    devolve    on    commissioner   of   land 

office. 

49.  Field-notes,  delivered  to  state — Access  thereto. 

50.  Field  notes,  condition  of  delivery. 

51.  Surveyor-general,  general  duties. 

52.  Basis  of  system  of  survey. 

53.  Government  survey  conclusive. 

54.  Official  plat  governs. 

55.  When  lands  considered  surveyed. 

56.  Boundaries  and  contents  of  public  lands — How  ascertained. 

57.  Deficiency. 

58.  Water  line  a  boundary. 

59.  To  find  center  of  section. 

60.  Actual  survey  governs. 

61.  Lines  of  division  of  half -quarter  sections.    How  run? 

62.  Fractional  sections. 

63.  Variance  in  form  of  surveys  on  rivers,  etc. 

64.  Departure  from  rectangular  system  in  California. 

65.  Extension  of  public  surveys  over  mineral  land. 

66.  When  survey  may  be  had  by  settlers  of  township. 

67.  Deposit  for  expenses  deemed  an  appropriation. 

68.  Deposits  made  by  settlers  to  apply  on  lands. 

69.  Modification  of  lines  in  Nevada. 

70.  Settlers'  rights  in  unsurveyed  lands. 

CHAPTER  IV 

SOME  GENERAL  OBSERVATIONS 

Section 

71.  Generally. 

72.  Applicable  to  all  systems  of  survey. 

73.  Magnetic  needle  not  now  used. 

74.  Government  will  not  issue  instructions  to  local  surveyors. 

75.  Line-trees. 

76.  Adjusting  instruments  and  testing  chain  or  tape. 

77.  Swearing  in  assistants. 

78.  Proportional  measurements. 

79.  Government  corners  preserved  by  land  owners. 

80.  Certainty  of  evidence. 

81.  Searching  for  obliterated  corners. 

82.  Field-notes  and  records. 


TABLE  OF  CONTENTS  ix 

Section 

83.  Harmonizing  calls. 

84.  Integrity  of  surveyor. 

85.  Originality. 

86.  Importance  of  instructions  to  original  surveyors. 

87.  Double  corners. 

88.  Old  isolated  surveys. 

89.  Tests  by  retracing  lines  in  immediate  vicinity. 

CHAPTER  V 

BASE  LINES PRINCIPAL  MERIDIANS TOWNSHIPS 

Section 

90.  Generally. 

91.  Initial  points  of  survey. 

92.  The  base  line. 

93.  Principal  meridian. 

94.  Standard  parallels. 

95.  Guide  meridians. 

96.  Township  exteriors. 

97.  Positions  of  base  lines  and  principal  meridians. 

98.  The  sixteen  township  blocks. 

99.  Forming  townships. 

100.  Double  corners  on  standard  parallels. 

101.  Dividing  blocks  into  townships  south  of  the  base  line. 

CHAPTER  VI 

SUBDIVIDING  TOWNSHIPS  AND  OBSERVATIONS 

Section 

102.  Generally. 

103.  Knowledge  of  original  survey  necessary. 

104.  Direction  of  range  lines  in  subdividing  townships. 

105.  Direction  of  township  lines  in  subdividing  township. 

106.  Meridional  section  lines. 

107.  Line  between  thirty-five  and  thirty-six. 

108.  Line  between  twenty-five  and  thirty-six. 

109.  Other  sections  lying  north  of  thirty-six. 

110.  Line  between  sections  one  and  two. 

111.  When  north  boundary  of  township  is  a  base  line. 

112.  Rule  as  to  other  sections. 

113.  General  requirements  reiterated. 

114.  Miscellaneous  suggestions. 

115.  Quarter-section  corners. 

116.  Impassable  objects  on  south  boundary  of  township. 

117.  Where  no  part  of  south  boundary  established. 

118.  Inaccessible  point  for  corner. 

119.  Extension  of  regular  lines  impossible. 

120.  Dependent  resurveys  and  private  land  claims. 

121.  Independent  resurvey. 

122.  Metes  and  bounds  survey  of  private  claims. 

123.  Rules — Metes  and  bounds — Resurveys. 

124.  Example  of  dependent  resurvey. 


x  TABLE  OF  CONTENTS 

Section 

125.  Fractional  townships — Subdivision  from  north  to  south  and  from 

east  to  west. 

126.  Fractional  townships — Subdivision  from  north  to  south  and  from 

west  to  east. 

127.  Fragmentary  townships. 

CHAPTER  VII 

SUBDIVISION  OF  SECTIONS 

Section 

128.  Generally. 

129.  Information  from  land  office. 

130.  Boundaries  of  section. 

131.  Subdividing  a  section  into  quarters. 

132.  Closing  lines  of  north  and  west  sides  of  township. 

133.  Double  sets  of  corners  on  township  and  range  lines. 

134.  Subdividing  fractional  sections. 

135.  Subdivision  of  quarter-section  into  quarters. 

136.  To  establish  quarter-quarter  corner,  north  or  west  of  center  of 

section  on  north  or  west  sides  of  township. 

137.  To  subdivide  quarter-section  lying  along  north  and  west  boun- 

daries of  township. 

138.  Re-establishment  of  meander  corners. 

139.  Proportionate  measurement  more  reliable  than  adjustment  of 

chain. 

140.  Resurvey  must  be  initiated  and  finished  at  certain  and  known 

points. 

141.  Irregular  and  fractional  sections. 


CHAPTER  VIII 

FRACTIONAL  LOTS,   NUMBERING  AND  AREAS 

Section 

141a.  Generally. 

142.  Fractional  lots,  what  are? 

143.  Formed  by  draftsmen  in  office. 

144.  Rules  for  subdividing  fractional  sections. 

145.  Boundaries  of  fractional  lots. 

146.  Townsites. 

147.  Islands. 

148.  Lots  in  section  in  north  boundary  of  township. 

149.  Lots  in  sections  in  west  boundary  of  township. 

150.  Lots  in  section  six. 

151.  Fractional  sections  bordering  on  reservations. 

152.  Mining  or  other  claims. 

153.  Uniform  system  of  numbering  lots. 

154.  In  irregular  surveys. 

155.  Areas  in  certain  cases  omitted. 

156.  Areas  of  lots. 

157.  Areas  of  lots  in  section  six. 

158.  Areas  of  tracts  forty  chains  long  north  or  west  boundary. 

159.  In  conclusion. 


TABLE  OF  CONTENTS  xi 

CHAPTER  IX 

STREAMS,   LAKES  AND  PONDS 

Section 

160.  Generally. 

161.  Ponds. 

162.  Lakes. 

163.  Navigable  rivers — Public  highways. 

164.  In  some  jurisdictions  state  owns  beds  of  navigable  rivers  below 

high-water  mark. 

165.  State  owns  the  beds  of  lakes. 

166.  Low-water  mark  is  the  boundary  in  some  states. 

167.  May  hold  to  water's  edge. 

168.  May  take  to  thread  of  stream. 

169.  The  owner  of  the  shore  owns  unsurveyed  islands. 

170.  Where  lake  is  a  boundary. 


CHAPTER  X 

EXCESS  AND  DEFICIENCY 

Section 

171.  Generally. 

172.  Excess  or  deficiency  apportioned  to  several  subdivisions. 

173.  Excess  or  deficiency  in  north  half  of  section  in  northern  tier  ol 

sections  in  a  township. 

174.  Deficiency  in  two  northern  tiers  of  sections. 

175.  To  establish  sixteenth  corner  in  north  tier  of  sections  in  town- 

ship. 

176.  Excess  and  deficiency  apportioned. 

177.  A  criticism  of  Missouri  court's  position  on  apportioning  excess  or 

deficiency  north  and  west  sections  of  township. 

178.  Transfer  of  whole  tract  at  same  time — Excess  divided. 

179.  Hold  in  proportion  to  widths  granted. 

180.  Apportioned  among  all  of  the  lots. 

181.  Excess  or  deficiency  presumed  to  cover  whole  line. 

182.  Where  deeds  show  intent  to  convey  whole  tract. 

183.  Where  tract  supposed  to  contain  a  certain  area. 

184.  Deficiency  of  irregular  lots  not  paralleling  each  other. 

185.  In  certain  cases  the  excess  is  not  to  be  apportioned. 

186.  Error  in  platting  village. 

187.  In  some  cases  deficiency  falls  on  fractional  lots. 

188.  Deeds  executed  by  same  grantor  at  same  time. 

189.  Excess  in  irregular  tracts. 

190.  Separate  surveys  and  successive  conveyances. 

191.  Irregular  lots  may  take  all  excess  or  stand  all  deficiency. 

192.  Replatting  of  original  block. 

193.  Dimensions  each  lot,  except  one  irregular  lot,  declared. 

194.  Permanent  monuments  must  not  be  moved  in  apportioning  ex- 

cess or  deficiency. 


Xii  TABLE  OF  CONTENTS 

CHAPTER  XI 

MEANDER  CORNERS  AND  MEANDER  LINES 
Section 

195.  Generally. 

196.  Meander  lines. 

197.  Reservation  or  park  boundary  not  a  meander  line. 

198.  Meander  run  at  mean  high-water  mark. 

199.  When  streams  are  meandered. 

200.  Shallow  streams  not  generally  meandered. 

201.  Where  meander  corners  established. 

202.  Meanders  of  lakes,  ponds,  bayous. 

203.  Lakes  and  ponds  within  boundaries  of  single  section. 

204.  Location  of  island  in  lake  or  river. 

205.  Meander  corners  not  to  be  exposed  to  waves  and  ice. 

206.  Lands  unsurveyable. 

207.  Mistake  or  fraud  in  running  meander  line. 

208.  Meander  line  bounding  marsh. 

209.  Bayou  a  boundary  line. 

210.  Variation  between  plat  and  field-notes. 

CHAPTER  XII 

MARKING  LINES   AND  CORNERS 
Section 

211.  Generally. 

212.  Blazing  trees. 

213.  Lines,  how  marked. 

214.  Blazing  random  lines  unlawful. 

215.  Impassable  objects  on  line — Witness  points. 

216.  Establishing  and  marking  corners. 

217.  Monuments  consist  of  corners  and  accessories. 

218.  Pits  and  mounds. 

219.  Standard  township  corners. 

220.  Closing  township  corners. 

221.  Corners  common  to  four  townships. 

222.  Corner  common  to  two  townships. 

223.  Standard  section  corners. 

224.  Closing  section  corners. 

225.  Corners  common  to  four  sections. 

226.  Section  corners  common  to  two  sections  only. 

227.  Section  corners  referring  to  one  section  only. 

228.  Quarter  section  corners. 

229.  Meander  corners. 

CHAPTER  XIII 

IDENTIFICATION    OF   TRACT 
Section 

230.  Generally. 

231.  Declaration  of  surveyor  since  deceased. 

232.  Declaration  in  favor  and  against  interest. 

233.  New  Jersey  strict  as  to  declarations. 

234.  Declaration,  acts  and  omissions  after  parting,  with  title. 


TABLE  OF  CONTENTS  xiii 

Section 

235.  The  declarations  of  an  agent. 

236.  Admitted  monuments — Others  lost. 

237.  Original  notes  of  survey. 

238.  Omissions  in  calls  may  be  supplied  under  certain  conditions. 

239.  Conflict  of  calls — Most  material  calls  control. 

240.  Mistakes  in  calls  of  a  patent  may  be  corrected. 

241.  Plan  not  yet  made  or  recorded. 

CHAPTER  XIV 

RIPARIAN   RIGHTS 
Section 

242.  Generally. 

243.  Alluvion  soil  is  of  imperceptible  growth. 

244.  Riparian  owners  are  the  owners  of  the  alluvial  deposits. 

245.  Dereliction — Reliction. 

246.  Avulsion. 

247.  Riparian  rights  in  waters  in  Pacific  Coast  states. 

248.  Accretion  and  alluvion — Partition  of. 

249.  Right  to  accretion  may  rest  on  lands  of  another. 

250.  State  boundary — Gradual  changes. 

251.  State  boundary — Sudden  changes. 

252.  Boundary  line  between  states  center  line  of  main  channel. 

253.  Unsurveyed  islands  in  navigable  rivers. 

254.  Apportion  navigable  waters  to  owners  of  shore  line. 

255.  Shifting  water  line  the  boundary. 

256.  Non-navigable  lake  a  boundary. 

257.  No  reservation  between  meander  line  and  water. 

258.  Takes  beyond  meander  line  and  quarter  line  to  water. 

259.  Division    of   docking    privileges    on    meandered    and    navigable 

stream. 

260.  Meaning  of  shore  and  shore  line. 

261.  Division  where  stream  is  straight. 

262.  Owner  of  bank  owner  of  bed  of  stream  or  inlet  and  of  beneficial 

use  thereof. 

263.  Rule  for  division  of  shore  on  rivers  and  lakes  differ. 

264.  Riparian  owner  entitled  to  island  in  stream. 

265.  Riparian  owner  has  free  access  to  navigable  part  of  stream. 

266.  Title  by  accretion  may  be  lost. 

267.  Regaining  land  lost  by  erosion  or  submergence. 

268.  Division  of  accretion  where  shore  line  approximately  straight. 

269.  Division  where  shore  line  curves. 

270.  Division  of  cove  privileges  on  land  bordering  on  sea. 

271.  General  rule  of  division  of  accretion  must  give  way  under  special 

circumstances. 

272.  Line  of  division  of  flats  to  run  at  right  angles  to  low-water  mark. 

273.  Lake  dried  up — Riparian  entryman's  rights. 

274.  Fraudulent  survey  and  return  by  government  officials:  Meander 

line  held  to  be  the  boundary  line. 

275.  Conveyance  on  meandered  lake  carries  all  the  land. 

276.  Law  of.  state  determines  title  to  land  under  lake. 

277.  Title  to  bed  of  navigable  and  nonnavigable  waters. 

278.  Division  of  alluvial  on  unnavigable  river. 

279.  Meander  line  and  official  plat. 

280.  Riparian  rights  on  nonnavigable  lake  same  as  on  streams. 

281.  Patent  of  lake  shore  carries  all  of  the  land. 


xlv  TABLE  OF  CONTENTS 

Section 

282.  Division  of  rights  of  accretion  among  riparian  owners. 

283.  Meander  line  run  as  near  water  as  possible. 

284.  Where  water  line  the  boundary  but  shifts. 

285.  To  entitle  party  to  alluvium,  water  must  form  boundary. 

286.  Doctrine  of  accretion  applies  to  states  and  nations. 

287.  Local  laws  generally  determine  rights  of  accretion. 

288.  Public  or  private  road  may  modify  rule. 

289.  Accumulation  on  shore  or  filling  up  from  bottom. 

290.  Batture — Shoals — Shallows. 

291.  Loss  by  accretion  or  submergence. 

292.  Strip  of  land  between  bank  and  meander  line. 

293.  Boundary  line  between  states  is  center  line  of  main  channel. 

294.  Unsurveyed  island  in  navigable  river. 

295.  Title  to  beds  of  navigable  rivers. 

296.  Accretion  and  movable  islands — Avulsion. 

297.  Right  to  build  wharves  and  docks. 

298.  High-water  mark  and  low-water  mark. 

299.  Water  must  form  boundary  to  give  riparian  rights. 

300.  Additional  rules  for  apportioning  flats. 

301.  Division  of  bed  of  round  lake. 

302.  Division  of  dock  privileges  distinguished   between   division   of 

bed  of  lake. 

303.  State  owns  the  beds  of  navigable  streams  and  lakes. 

304.  Meander  line  established  by  gross  fraud  or  mistake. 

305.  Division  of  cove  flats. 

306.  Rules  for  division  of  shore  line. 

307.  Irregular  lines — Islands — Straight  lines. 

308.  Islands. 
308a.  Straight  lines. 

309.  Division  by  shortest  distance  to  stream. 

310.  Accretion — Revulsion — Reliction. 

311.  Rights  on  navigable  and  nonnavigable  waters. 

312.  Riparian  rights — Release  and  extent  of. 

313.  What  is  a  navigable  river? 

314.  Riparian  rights  a  valuable  appurtenant. 

315.  Riparian  owners. 

316.  Boundaries  between  owners  of  accretion. 

317.  Island  and  main  shore. 

318.  Course  of  stream  changing. 

319.  How  to  find  center  of  thread  of  stream. 

320.  Right  to  accretions  depends  on  conditions  at  date  of  grant 

321.  Revulsion  of  river — Boundary  remains  unchanged. 

322.  Division  of  long  irregular  lake  bed. 

323.  Title  to  bed  and  shores  of  water  ways. 

324.  Laws  of  state  determine  extent  of  riparian  proprietor's  rights. 

325.  Division  by  bisecting  angle  between  curved  shores. 

326.  Partition  of  land  on  inland  lakes. 

CHAPTER  XV 

RESTORATION  OF  LOST  OR  OBLITERATED  CORNERS,  AND  SUB- 
DIVISION OF  SECTIONS 
Section 

327.  Generally. 

328.  Special  information. 

329.  An  obliterated  corner. 

330.  Private  surveyors. 


TABLE  OF  CONTENTS  XV 

Section 

331.  Accurate  knowledge  original  survey  necessary. 

332.  Instructions  issued. 

333.  Double  sets  of  corners. 

334.  Method  now  followed. 
•J35.     Limitation  on  errors. 

336.  Initial  surveys. 

337.  Territory  northwest  of  Ohio  river. 

338.  Townships  west  of  the  Muskingum. 

339.  United  States  military  tract  in  Ohio. 

340.  Subdividing  sections. 

341.  General  rules  and  deductions. 

342.  Extinct  corners  and  identification  of  memorials. 

343.  Exceptional  cases. 

344.  Magnetic  declination. 

345.  Marks  on  monuments  of  survey. 

346.  Restoration  of  corners  on  base  lines  and  standard  parallels. 

347.  What  are  standard  corners? 

348.  Restoration  of  lost  closing  corners  in  certain  cases. 

349.  The  proportions  to  be  used. 

350.  Restoration  of  township  corners  common  to  four  townships. 

351.  Restoration  of  corners  common  to  two  townships. 

352.  Restoration  of  closing  corners. 

353.  Restoration  of  interior  section  corners. 

354.  Restoration  of  quarter-section  corners  on  township  boundaries. 

355.  Restoration  of  quarter-section  corners  on  closing  section  lines 

between  fractional  sections. 

356.  Restoration  of  interior  quarter-section  corners. 

357.  Where  double  corners  were  originally  established,  one  of  which 

is  known  to  restore  the  other. 

358.  Where  double  corners  were  originally  established  and  both  are 

missing — To  restore  the  one  established  when  the  township 
line  was  run. 

359.  Where  double  corners  were  originally  established  and  both  are 

lost — To  restore  the  one  established  when  the  township  was 
subdivided. 

360.  Where  triple  corners  were  originally  established  on  range  lines, 

one  or  two  of  which  have  become  obliterated — To  restore 
either  of  them. 

361.  Where  triple  corners  were  originally  established  on  range  lines, 

all  of  which  are  missing — To  restore  same. 

362.  Re-establishing  meander  corners. 

363.  Restoration  of  fractional  section  lines. 

364.  Records. 

365.  Subdivision  of  sections. 

366.  Subdivision  of  sections  into  quarters. 

367.  Subdivision  of  fractional  sections. 

368.  Subdivision  of  quarter-sections,  into  quarter-quarters. 

369.  Subdivision  of  fractional  quarter-sections. 

370.  Proportionate  measurement. 

371.  Equitable  part  of  surplus  apportioned  to  entire  line. 

372.  Distinction  between  corner  and  monument. 

373.  Monuments  and  accessories. 

374.  An  existent  or  known  corner. 

375.  Character  of  original  monuments  and  accessories. 

376.  What  is  a  lost  corner? 

377.  Proportional  measurement. 

378.  Single  proportionate  measurement. 

379.  Double  proportionate  measurement. 


xvi  TABLE  OF  CONTENTS 

Section 

380.  To  re-establish  lost  corner  common  to  four  townships. 

381.  To  restore  corner  common  to  four  townships  where  the  lines 

from  three  directions  only  have  been  established. 

382.  To  restore  lost  meander  corner. 

383.  Restoring  lost  corners  on  broken  boundaries. 

384.  Restore  a  lost  closing  corner  on  standard  parallel. 

385.  Government  corners  conclusive. 

386.  Obliterated  meander  corners. 

387.  Irreconcilable  and  inconsistent  calls. 

388.  Original  corners  can  not  be  corrected  by  court. 

389.  Survey  made  under  state  law. 

390.  Where  government  survey  is  grossly  fraudulent. 

391.  Apportion  distance  between  two  known  corners  to  establish  lost 

corner. 

392.  Witness  trees. 

393.  Lost  corner  on  standard  parallel. 

394.  Variation  between  meander  line  and  field-noted. 

395.  Courses  and  distances  yield  to  fixed  monuments. 

396.  Must  regard  field-notes  and  must  search  for  corners. 


CHAPTER  XVI 

EVIDENCE  OF  LOCATION  OF  CORNERS  OR  LINES 
Section 

397.  Generally. 

398.  Testimony  of  those  who  saw  corner. 

399.  Declarations  of  surveyor  to  show  mistake. 

400.  Declarations  of  surveyors  since  deceased. 

401.  Positive  and  uncontradicted  testimony  as  to  corner. 

402.  Surveyor  may  testify  as  to  declarations  of  old  residents. 

403.  Declarations  of  surveyor. 

404.  Declarations  as  to  private  boundaries. 

405.  Evidence  of  common  repute  as  to  location  of  boundary  or  corner. 

406.  Maps  as  evidence. 

407.  An  ancient  plan  of  town  from  natural  source. 

408.  Undisputed  line  in  another  town. 

409.  Location  of  one  line  by  another. 

410.  Ancient  fences. 

411.  Testimony  of  surveyors. 

412.  Parol  evidence  to  show  boundaries. 

413.  Identify  monument — Ambiguous  description. 

414.  Original  corners  and  patent  inconsistent. 

415.  Marked  trees — Courses  and  distances — Parol  evidence. 

416.  General  reputation — Declarations — Private  boundaries. 

417.  Depositions  of  deceased  surveyor  taken  in  other  case. 

418.  Deceased  surveyor's  ancient  plans,  notes,  etc.,  admissible. 

419.  Declarations  of  interested  persons  since  deceased. 


TABLE  OF  CONTENTS 

CHAPTER  XVII 

BOUNDARIES  BETWEEN  STATES  AND  NATIONS 

Section 

420.  Generally. 

421.  Boundaries  between  states. 

422.  Jurisdiction  of  islands. 

423.  Jurisdiction  of  rivers  on  borders  of  state. 

424.  Jurisdiction  between  states. 

425.  Boundary  and  ownership. 

CHAPTER  XVIII 

THE  MEANING  OF  WORDS  USED  IN  DESCRIPTIONS 

Section 

426.  Generally. 

427.  Valid  and  effective. 

428.  False  and  inconsistent  descriptions. 

429.  Words  may  be  rejected  as  surplusage. 

430.  Construed  most  strongly  against  grantor. 

431.  Construction  should  be  equitable — Not  technical. 

432.  Deed  should  have  reasonable  construction. 

433.  Reference  to  other  instruments. 

434.  Intent  gathered  from  entire  grant. 

435.  Latent  ambiguity  explained  by  parol  testimony. 

436.  Precise  and  general  descriptions  irreconcilable. 

437.  Retain  description  which  best  subserves  intention. 

438.  Long  occupation  of  great  weight. 

439.  Inconsistent  descriptions. 

440.  Town  plats  illegally  recorded  or  not  recorded. 

441.  Boundary  recognized  by  parties. 

442.  Parol  evidence  of  declarations  of  covenantor. 

443.  "Beginning  at"  and  "bounding  on  land  of  B." 

444.  Running  to  a  known  line. 

445.  "Northerly"  means  north. 

446.  Deed  referring  to  plan. 

447.  Contents  yields  to  certain  boundaries. 

448.  Line  center  of  highway. 

449.  Highway  not  mentioned  in  deed. 

450.  Laying  off  given  quantity. 

451.  The  calls  of  an  entry. 

452.  May  discard  less  important  calls. 

453.  Quantity  a  leading  factor  in  determining  boundary. 

454.  Adhere  to  quarter-line  as  more  certain. 

455.  Private  way  a  boundary. 

456.  Apportion  excess  on  whole  line. 

457.  Center  of  street  the  boundary. 

458.  Invalid  plat. 

459.  Adjoining  property  may  be  consulted. 

460.  Monuments  control  over  quantity. 

461.  Government  plan  and  quantity  aid  construction. 

462.  Corners  as  actually  established  to  govern. 

463.  Government  patent  part  of  description. 

464.  Variance  in  measurement — Presumed  in  whole  line. 

465.  Extrinsic  evidence  to  explain  calls. 


xviii  TABLE  OF  CONTENTS 

Section 

466.  Referring  to  other  instrument. 

467.  Evident  intention  governs. 

468.  Length  of  outer  line  controlling  factor. 

469.  No  other  land  owned  helps  out. 

470.  Can  surveyor  locate? 

47L  Inquiry  based  on  land  marks. 

472.  Meanings  of  technical  terms  help. 

473.  Rejecting  part  of  description. 

474.  General  description  aided  by  evidence  aliunde. 

475.  Acts  of  parties  may  determine  tract. 

476.  Plat  governs  as  to  description. 

477.  Inconsistent  calls. 

478.  Description  by  lots  rejected. 

479.  Invalid  plat  referred  to. 

480.  Quantity  supports  call  taken. 

481.  Construed  most  strongly  against  grantor. 

482.  Parties  presumed  to  make  valid  deed. 

483.  Particular  words  control  general. 

484.  Granting  clause  must  prevail  against  grantor. 

485.  Plat  part  of  description  in  deed  prevails. 

486.  "Along  or  upon  a  road." 

487.  Construction  of  description  under  California  statutes. 

488.  Course  and  distance  may  be  rejected  as  erroneous. 

489.  Which  bank  of  slough  meant? — Surrounding  circumstances. 

490.  Lines  actually  run  and  marked  on  the  ground  control. 

491.  Call  for  one-half  of  creek  or  down  center  of  creek. 

492.  Evidence  of  natural  features  to  establish  boundary  line. 

493.  East  half  of  tract,  containing  fifty  acres. 

494.  A  fractional  part  of  government  subdivision  usually  means  that 

fractional  part  of  the  widths  of  that  subdivision. 

495.  What  distance  to  take. 

496.  Northwest  corner  of  lot  means  corner  of  lot — Not  corner  of  in- 

tersection of  center  of  street. 

497.  To  a  tree  on  bank  of  river;  thence  down  river,  etc. 

498.  Bounded  by  a  navigable  river. 

499.  Conflict  of  description  in  deeds  from  same  person. 

500.  Tract  bounded  by  river. 

501.  Can  claim  actual  measurement  only. 

502.  Tract  bounded  on  a  private  way, 

503.  Private  grant  interpreted  favorable  to  grantee. 

504.  Meaning  of  words  in  deed — "To  the  pond,  etc." 

505.  When  the  construction  of  a  deed  is  doubtful. 

506.  Boundary  between  riparian  owners  a  fresh  water  stream. 

507.  Monuments  may  yield  to  courses  and  distances. 

508.  Low-water  mark — Metes  and  bounds — Monuments — Courses. 

509.  Bayou  may  be  navigable  river. 


CHAPTER  XIX 

SOME  USUAL  AND  UNUSUAL  QUESTIONS  ANSWERED 

Section 

510.  Generally. 

511.  East  and  west  quarter  line  of  section  six. 

512.  Section  six  in  "fractional  township." 

513.  Interior  section  made  fractional  by  lake,  to  run  quarter  line. 


TABLE  OF  CONTENTS  xix 

Section 

514.  Fractional  section  five,  no  quarter  corners  established. 

515.  Two  section  corners  and  one  quarter  corner  only  established. 

516.  Fractional  section  two — East  part  in  lake — Run  quarter  lines. 

517.  "More  or  less  according  to  the  United  States  survey." 

518.  The  north  eighty  acres  of  N.  W.  %  of  section  five. 

519.  Quarter-quarter  corner  in  fractional  section. 

520.  Quarter-quarter  corner  west  half  section  six. 

521.  Quarter  corners  north  and  west  sides  of  section  six. 

522.  Quarter  corners,  other  than  six  on  north  and  west  sides  township. 

523.  Lost  quarter  corner,  west  side  of  section  two. 

524.  Lost  interior  section  corners  common  to  four  sections. 

525.  Lost  corners  common  to  four  sections  on  town  or  range  line. 

526.  Lost  corner  common  to  two  sections  only  on  town  or  range  line. 

527.  Where  section  lines  are  not  due  lines. 

528.  A  lost  closing  corner. 

529.  A  lost  standard  corner. 

530.  Restoration  of  township  corners  common  to  four  townships. 

531.  Re-establishment  of  lost  closing  corner. 

532.  Re-establishment  of  meander  corners. 

533.  To  re-establish  one  of  two  double  corners. 

534.  Re-establish  double  corner  where  both  are  missing. 

535.  To  re-establish  one  missing  triple  corner  on  range  line. 

536.  Re-establish  triple  corners  on  range  line  where  all  are  missing. 

537.  To  restore  fractional  section  lines  closing  upon  reservations  or 

grants  to  private  persons. 

538.  Relocation  of  moved  corners. 

539.  To  establish  west  quarter  corner  of  section  six. 

540.  To  establish  1/16  corner  of  same  section  north  of  the  quarter 

corner. 

541.  To  establish  north  quarter  corner  of  section  six  in  a  township 

bordering  on  correction  line  north. 

542.  To  establish  north  quarter  corner  of  section  five  in  a  township 

bordering  north  on  a  correction  line. 

543.  To  re-establish  the  east  quarter  corner  of  section  five. 

544.  Observations    on    different    methods    of    establishing    quarter- 

quarter  corners  north  of  center  in  fractional  sections. 


CHAPTER  XX 

DEDICATION   AND  ESTOPPEL 

Section 

545.  Generally. 

546.  Dedication  to  public  or  charitable  use. 

547.  Methods  of  dedication. 

548.  Dedication  by  plat — Acceptance. 

549.  What  title  passes?     Status  of  land:  Rights  of  dedicator. 

550.  Completed  dedication  irrevocable — Reverter. 

551.  Certain  acts  do  not  constitute  dedication. 

552.  Reservation  of  minerals  in  dedication  of  street. 

553.  Estoppel  of  grantee  as  against  public. 

554.  Estoppel  of  proprietor  of  plat. 

555.  Words  of  dedication. 


XX  TABLE  OF  CONTENTS 

CHAPTER  XXI 

AGREEMENTS  ON  BOUNDARIES  AND  SURVEYORS 

Section 

556.  Generally. 

557.  Parol  agreement  as  to  boundary. 

558.  Consent  to  rectify  crooked  boundary. 

559.  Boundary  line  agreed  upon  conclusive. 

560.  Trustee  bound  in  private  capacity  also. 

561.  Ignorant  as  to  line  and  agreement  between  owners. 

562.  Agreements  on  dividing  line  not  a  conveyance. 

563.  Party  not  estopped  under  certain  circumstances. 

564.  Agreement  to  employ  a  surveyor. 

565.  Acquiescence — Mistake — Estoppel. 

566.  Agreements  under  mistake  as  to  facts. 

567.  Adverse  possession  under  color  of  title. 

568.  Agreement  on  line  indefinite  and  uncertain. 

569.  Practical  location  of  line. 

570.  Estoppel  by  acts. 

571.  Agreements,  compromises  approved  and  encouraged. 

672.    Room  for  controversy  and  disagreement  over  line  essential  in 
most  jurisdictions. 


CHAPTER  XXII 

SURVEYORS LIABILITIES EXPERTS RIGHTS 

Section 

573.  Generally. 

574.  Liability  of  surveyor — Error  in  fixing  boundary. 

575.  Degree  of  care  required  of  surveyor. 

576.  Private  and  county  surveyor  alike  liable  for  negligence. 

577.  Not  liable  for  excess  of  land  parted  off — Liable  for  fees  paid  him. 

578.  Surveyors  as  experts. 

579.  Libel  or  slander  of  surveyor. 


CHAPTER  XXIII 

PLATS  AND  PLATTING  LANDS 
Section 

580.  Generally. 

581.  Plat  must  be  made  and  acknowledged  by  owner  of  lands. 

582.  Estoppel. 

583.  Evidence. 

584.  Owners  of  lots  in  platted  lands  have  easements  in  streets. 


TABLE  OF  CONTENTS  xxi 

CHAPTER  XXIV 

ADVERSE   POSSESSION 


Section 

585.  Generally. 

586.  Must  have  possession  of  the  thing. 

587.  What  constitutes  adverse  possession? 

588.  Inferences  from  acts  of  party. 

589.  Who  may  acquire  title  by  adverse  possession? 

590.  Possession — Actual  and  constructive. 

591.  Visible  and  notorious  possession. 

592.  Possession  must  be  hostile. 

593.  Occupying  to  boundary  line — Agreements,  etc. 

594.  Possession  must  be  exclusive. 

595.  Possession  must  be  continuous. 

596.  Tacking  possessions. 


CHAPTER  XXV 

HIGHWAYS 

Section 

59 6a.  Generally. 

597.  Laying  out. 

598.  Survey  of  highway. 

599.  Retracing  the  line  of  a  highway. 

600.  Highway  by  user  or  prescription. 

601.  The  user. 

602.  Alteration. 

603.  Vacation. 

604.  Non-user. 

605.  Failure  to  open  or  repair. 

606.  Fencing  in  parts  of  highway. 

607.  Non-user  of  streets  distinguished  from  highways. 

608.  Elevation  in  highway  deflecting  travel. 

CHAPTER  XXVI 

SURVEYS  OF  ORIGINAL  THIRTEEN   STATES 

Section 

609.  Generally. 

610.  Macomb's  Purchase  in  New  York. 

611.  The  Holland  Purchase  in  New  York. 

612.  Townships. 

613.  Resurveys  and  subdivisions  of  lots. 

614.  How  to  secure  information. 

615.  Triangulation  surveys. 

616.  New  Hampshire. 

617.  Pennsylvania. 

618.  General  rules. 

619.  Monuments  on  the  ground. 

620.  Adjoining  tracts  or  adjoiners. 

621.  Block  surveys. 

622.  Connecticut. 

623.  Maryland. 

624.  Other  states. 


xxii  TABLE  OF  CONTENTS 

CHAPTER  XXVII 

THE  RECTANGULAR  SYSTEM  IN  THE  DOMINION  OF  CANADA 

Section 

625.  Generally. 

626.  Road  allowances. 

627.  Township  boundaries. 

628.  Base  lines. 

629.  Correction  lines. 

630.  Errors. 

631.  Surplus  or  deficiency. 

632.  Irregular  quarter-sections. 

633.  Monuments. 

634.  Corners  on  correction  lines. 

635.  Legal  subdivisions. 

636.  Special  instructions. 

637.  Plans  of  surveys. 

638.  Correction  of  survey. 

639.  Resurvey  on  petition. 

640.  Subdivision  of  sections. 

641.  Original  boundary  lines  controlling. 

642.  Re-establishment  of  lost  corners. 

643.  Road  allowances  to  be  taken  into  account. 

644.  Plans  of  surveys  to  be  transmitted  to  provinces. 

645.  Penalties  for  molesting  surveyor  or  destroying  monuments. 

646.  Townships — Surplus — Deficiency. 

647.  Subdivision  of  townships. 


TABLE  OF  CASES 


{.References  are  to  Sections.] 


Abbott  v.   Perkinson,  144   Ky. 

495  563 

Adams  v.  Blodgett,  47  N.  H. 
219  231 

v.  Pease,  2  Conn.  481          164 
v.  Wilson,  137  Ala.  632       190 
Ainsworth  v.  Munoskong  Hunt- 
ing &c.  Club,  159  Mich.  61       165 
Alden  v.  Gilmore,  13  Maine  178     586 
Alexander   v.   Lively,  5   T.  B. 

Mon.   (Ky.)   159  238 

Algonquin  Coal  Co.  v.  North- 
ern Coal  &  Iron  Co.,  162  Pa. 
114  590 

Allen  v.  Allen,  58  Wis.  202 

590,  592 
v.    Vincennes,    25    Ind. 

531  581 

Allis  v.  Field,  89  Wis.  327          586 
Alton    v.    Illinois    Trans.    Co. 

12  111.  38  430 

Ames  v.  Hilton,  70  Maine  36      502 
Anderson     v.     Baughman,     7 

Mich.  69  427,  428 

v.    Burnham,    52    Kans. 

454  589,  590 

v.  Wirth,  131  Mich.  183     172 
Armstrong  v.  Topeka,  36  Kans. 

432  581 

Arneson  v.  Spawn,  2  S.  Dak. 

269  411 

Attorney  General  v.  Evart 
Booming  Co.,  34  Mich. 
462  168 

v.    Hudson    Tunnel    R. 

Co.  27  N.  J.  Eq.  176       324 
v.  Richards,  2  Anstr.  603     323 
Austin  v.  Esquela  Land,  Etc., 
Co.     (Tex.    Civ.    App.)     107 
S.  W.  1138  172 

Avery  v.  Fox,  1  Abb.   (U.  S.) 

246  324 

Axline  v.  Shaw,  35  Fla.  305      324 


Ayers  v.  Watson,  137  U.  S.  584 

415,  508 
B 

Backus  v.  Detroit,  49  Mich.  110  415 
Bailey  v.  Chamblin,  20  Ind.  33  172 
Bainbridge  v.  Sherlock,  29  Ind. 

364 
Baker  v.  St.  Paul,  8  Minn.  491 


164 
581 
313 
187 
592 
249 


Baldwin  v.  Erie  Shooting  Club, 

127   Mich.   602 
v.  Shannon,  43  N.  J.  L. 

596 
Ballard   v.   Hansen,   33   Nebr. 

861 
Banks  v.  Ogden,  10  Sup.   Ct. 

518 
v.  Ogden,  2  Wall.  (U.  S.) 

57  255,  284,  288,  500 

Barber  v.  Robinson,  78  Minn. 

193  590 

Barclay  v.  Howell,  6  Pet.  498     403 
Barnard    v.    Ashley,    18    How. 

(U.  S.)  43  51 

Barnes  v.  Daveck,  7  Cal.  App. 

220  600 

Barney  v.  Keokuk,  94  U.  S.  324 

160,  164,  249,  295,  297,  324 
Barnhart  v.  Ehrhart,  33   Ore. 

274  196 

Barringer  v.  Davis,  141  Iowa 

419  304 

Barron  v.  Cobleigh,  11  N.  H. 

557  411 

Bartlett  v.  Bangor,  67  Maine, 

460  584 

v.     Emerson,     7     Gray 

(Mass.)   174  416 

Bartlett  Land  &  Lumber  Co. 

v.  Saunders,  103  U.  S.  316      415 
Batchelder  v.  Keniston,  51  N. 

H.  496  307 

Bates  v.   Tymason,   13  Wend. 
(N.  Y.)  300  442 


xxiii 


xxiv 


TABLE  OF  CASES 


Bauer   v.    Gottmanhausen,   65 

111.  500  490 

Bay  City  Gas  Co.  v.  Industrial 

Works,  28  Mich.  182  261,  263 
Bean  v.  Bean,  163  Mich.  379  595 
Beardsley  v.  Crane,  52  Minn. 

537  59,  237,  395,  515 

Beck    Co.    v.    Milwaukee,    139 

Wis.  340  165 

Bellefontaine  Imp.  Co.  v.  Nied- 

ringhaus,  181  111.  426  296 

Bellis  v.  Bellis,  122  Mass.  414  594 
Beltz  v.  Mathiowitz,  72  Minn. 

443  237,  385,  395 

Benedict  v.  Gaylord,  11  Conn. 

322  412 

Benn  v.  Hatcher,  81  Va.  25  546 
Bennett  v.  Simon,  152  Ind.  490  172 
Benson  v.  Morrow,  61  Mo.  345 

249,  289,  290,  317 
Bessemer  Land  and  Improve- 
ment Co.  v.  Jenkins,  111  Ala. 

135  546,  548 

Bigelow  v.  Nickerson,  70  Fed. 

113  162,  425 

Billingsley   v.   Bates,   30   Ala. 

376  237 

Bird  v.  Stark,  66  Mich.  654          593 
v.  Whetstone,  71  Kans. 

430  596 

Bissell  v.   Fletcher,   19   Nebr. 

725  292 

v.   New   York   Cent.   R. 

Co.,  23  N.  Y.  61  584 

Blake   v.    Doherty,    5    Wheat. 

(U.   S.)   359  415 

Bloch  v.  Pfaff,  101  Mass.  535 

185,  190 
Blodgett    &c.    Lumber   Co.   v. 

Peters,  87  Mich.  498  255,  309 
Blythe  v.  Sutherland,  3  Mc- 

Cord  258  231 

Boardman    v.    Reed,    6    Pet. 

(U.  S.)  328  413 

Board  of  Comrs.  of  Miami  Co. 

v.  Wilgus,  42  Kans.  457  581 

Board    of    Education    v.    Van 

Wert,  18  Ohio  St.  221  550 

Boltz  v.  Cclsch,  134  Iowa  480  594 
Boorman  v.  Sunnuchs,  42  Wis. 

233  276,  311 

Booth  v.  Clark,  59  Wash.  229 

172,  179 
v.  Shepherd,  8  Ohio  St. 

243  425 

v.  Small,  25  Iowa  177        587 


Borer  v.  Lange,  44  Minn.  281  458 
Boyd  v.  Graves,  17  U.  S 

(4  Wheat.)  513  564 

Brand  v.  Daunoy,  8  Mart.  N  S. 

(La.)   159  412 

Brandt     v.     Ogden,    1     Johns 

(N.  Y.)   156  445 

Branham  v.  Bledsoe  Creek 
Turnpike  Co.,  69  Tenn. 
(1.  B.  J'.  Lea)  704  491 

Branner  v.  Stormont,  9  Kans. 

51  576 

Braxon  v.  Bresler,  65  111.  488 

164,  168 
Brewer    v.    Boston    &   W.    R. 

Corp.,  5  Mete.   (Mass.)  478       570 
Bristol   v.    Carroll,    95    111.    84 

285,  299 

Brooks  v.  Bruyn,  24  111.  372         587 

v.  Stanley,  66  Nebr.  826     172 

v.  Topeka,  34  Kans.  277     581 

Brown  v.  Baraboo,  98  Wis.  273     457 

v.     Clements,     3     How. 

(U.  S.)  650  62 

v.  Gay,  3  Maine  126 

172,  185 
v.      Huger,      21      How. 

(U.  S.)  305          51,  415,  500 
v.  McKay,  125   Cal.  291     593 
v.  Rose,  55  Iowa  734         587 
Buffalo    v.    Delaware    R.    Co., 

190  N.  Y.  8-4  605 

Bullock    v.    Wilson,    2    Port. 

(Ala.)  436  164,  324 

Burk  v.  Howe,  171  Cal.  242  64 

Burnett    v.    McCluey,    78    Mo. 

676  480 

Burrell  v.  Burrell,  11  Mass.  294  593 
Burt  v.  Busch,  82  Mich.  506  578 
Burton  v.  Isaacson,  122  Minn. 

483  322 

v.  Martz,  38  Mich.  761       581 
v.    Mullenary,    147    Cal. 

260  469 

Buse  v.  Russell,  86  Mo.  214 

249,  289,  290 

Bushnell  v.  Scott,  21  Wis.  451  546 
Butler  v.  Grand  Rapids  &  I.  R. 

Co.,  85  Mich.  246      168,  169 
v.    1st    Presb.    Church, 
27  Minn.  355  478 


Caldwell  v.   Copeland,  37  Pa. 

427  586 

Campau  Realty  Co.  v.  Detroit, 

162   Mich.   243  ,  263 


TABLE  OF  CASES 


Campbell   v.   City  of  Kansas, 

102  Mo.   326  550 

v.  Wood,  116   Mo.   196       578 
Cannon  v.  Emmans,  44  M,inn. 

294  459 

Carney  v.  Hennessey,  74  Conn. 

107  235 

Carpenter    v.     Hennepin,     56 

Minn.  513  324 

Carr  v.  Carpenter,  22  R.  I.  528     244 
v.  Mloore,  119  Iowa  152     255 
Carroll  v.  Village  of  Elmwood, 

88  Nebr.  352  548 

Carson  v.  Blazer,  2  Bin.  (Pa.) 

475  164 

Caspar  v.  Jamison,  120  Ind.  58 

467,  508 
Cass  Farm  Co.  v.  Detroit,  139 

Mich.  318  594 

Caufman  v.  Cedar  Springs 
Presbyterian  Cong.,  6  Bin. 
(Pa.)  59  231 

Cavanaugh  v.  Jackson,  91  Cal. 

580  566,  568 

Caylor  v.  Luzadder,   137   Ind. 

319  176,  177,  180 

Cessill  v.  State,  40  Ark.  501        425 
Champlin     v.     Pendleton,     13 

Conn.  23  448,  449 

Chan  v.  Brandt,  45  Minn.   93 

237,  395 
Chandos    v.    Mack,    77    Wis. 

573  169,  324 

Chapman    v.    Gordon,    29    Ga. 

250  581 

v.  Polack,  70  Cal.  487          54 
Chase    v.    Oshkosh,    81    Wis. 

313  607 

Chicago    v.    Borden,    190    111. 

430  600 

v.    Van    Ingen,   152    111. 

624  551 

v.  Ward,  169  111.  302          555 
Chicago  Transit  Co.  v.  Camp- 
bell, 110  111.  App.  366  165 
Child  v.  Kingsbury,  46  Vt.  54 

418,  419 
Childs  v.  Nelson,  69  Wis.  125 

606,  607 
Choate  v.   Burnham,   7   Pick. 

(Mass.)   274  413 

Choppin  v.   Manson,   144   Ky. 

634  172 

Church    v.    Case.    122    Mich. 

554  169 

Claflin  Co.  v.  Middlesex  Bank- 
ing Co.,  113  Fed.  958  589 


Clark    v.    Campau,    19    Mich. 

325  248,  261,  300 

v.  Gilbert,  39  Conn.  94        589 
v.  Hills,  67  Tex.  141  419 

v.  Hull,  184  Mass.  164        600 
v.    Wethey,    19    Wend. 

(N.  Y.)  320  185,  557 

Clayton  v.  Feig,  179  111.  534 

172,  563 
Clement  v.  Packer,  125  U.  S. 

309  231,  233 

Clendaniel  v.  Conrad,  3  Boyce 

(Del.)   549  605 

Cleveland    v.    Flagg,    4    Cush. 

(Mass.)  76  443 

Clifton    Heights   Land    Co.    v. 

Randell,  82  Iowa  89  481 

Clute  v.  Fisher,  65  Mich.  48 

170,  282,  300,  324,  326 
Coate  v.  Speer,  3  McCord  (S. 

Car.)  227  231 

Coburn    v.     Hollis,     3     Mete. 

(Mass.)    125  590 

Coffey  v.  Hendricks,  66   Tex. 

676  578 

Coffin  v.  Left  Hand  Ditch  Co., 

6  Colo.  443  247 

Cole  v.  Millspaugh,  111  Minn. 

159  579 

Coleman  v.  Flint  &  P.  M.  Ry. 

Co.,  64  Mich.  160  606 

Coles  v.  Yorks,  36  Minn.  391      415 
Collins  v.  Clough,  222  Pa.  St. 

472  231,  236,  400,  410 

Colter  v.  Mann,  18  Minn.  96        477 
Colton  Land  &  Water  Co.  v. 

Swartz,  99  Cal.  278  581 

Commonwealth  v.  Cole,  26  Pa. 

St.  187  600 

Coogan  v.   Burling   Mills,   124 

Mass.  390  433 

Cook  v.   Burlington,   30   Iowa 

94  311 

v.  McClure,  58  N.  Y.  437 

161,  311,  314 
Cooley  v.  Golden,  117  Mo.  33 

167,  249,  296,  321 
Cottingham   v.   Seward    (Tex. 

Civ.  App.)  25  S.  W.  797  231 

Coulthard  v.  Stevens,  84  Iowa 

241  244 

Cox  v.  Arnold,  139  Mo.  337 

167,  310,  324 
v.    Commissioners,    194 

111.  355  604 

v.    Daugherty,    75    Ark. 
395  562 


xxvi 


TABLE  OF  CASES 


Craig    v.    Radford.    3    Wheat. 

(U.  S.)  594  51 

Crandall  v.  Allen,  118  Mo.  403  249 

Cronin  v.  Gore,  38  Mich.  381  564 

Cross  v.  State,  147  Ala.  125  600 
Curtis  v.  Aaronson,  49  N.  J.  L. 

68  233,  418 

Cutler  v.  Callison,  72  111.  113  565 
Cutter  v.  Cambridge,  6  Allen 

(Mass.)  20  591 


Daggatt     v.     Shaw,     5     Mete. 

(Mass.)  223  416 

Daniels  v.  Chicago  Ry  Co.,  35 

Iowa  129  549 

Davenport    v.    Buffington,    97 

Fed.  234  549 

Davenport  &c.  Ry.  &c.  Co.  v. 

Johnson,   188   111.   472  285 

Davidson  v.  Reed,  111  111.  167     546 
Davies    v.    Huebner,    45    Iowa 

574  604,  606 

Davis  v.  Bowmar,  55  Miss.  671     592 

v.  Easley,  13  111.  192  587 

v.  Howard,  172  111.  340        340 

v.   Mason,   21   Mass.    ('4 

Pick.)  156  578 

v.   Rainsford,    17    Mass. 

207  185,  446 

Dean  v.  Goddard,  55  Minn.  290 

586,  588,  590 
Deepwater  R.  Co.  v.  Honaker, 

66  W.  Va.   136  546 

Deerfield    v.    Arms,    17    Pick. 

(Mass)  41  248,  255,  269,  308,  317 
Delaney  v.  Boston,  2  Har. 

(Del.)   489  164 

Delaplaine  v.  Chicago  &c.  Ry. 

Co.  42  Wis.  214  165,  324 

Delaware,  L.  &  W.  Ry.  Co.  v. 

Hannon,  37  N.  J.  L.  276  308a 
DeLong  v.  Olsen,  63  Nebr.  327  255 
Denham  v.  Holeman,  26  Ga. 

192  586 

Denny  v.  Cotton,  3  Tex.  Civ. 

App.  634  286,  310,  324 

Detroit  v.  Detroit  &  M.  R.  Co. 

23  Mich.  173  581 

Detwiler   v.    Toledo,    13    Ohio 

Cir.  Ct.  579  403 

Dewitt  v.  Shea,  202  111.  393          593 
Diana  Shooting  Club  v.  Rust- 
ing, 156  Wis.  261  168 
Diehl  v.  Zanger,  39  Mich.  601 

405,  490 


Dierssen   v.   Nelson,    138    Cal. 

394  565 

Dixon  v.  Finnegan,  182  Mo.  Ill     593 
Doe  v.  Hildreth,  2  Ind.  274  51 

v.    Thompson,    14    East 

323  404 

Donohoo   v.    Murray,   62   Wis. 

100  581,  584 

Donovan  v.  Bissett,  53  Mich. 

462  587 

Downend  v.  Kansas  City,  156 

Mo.  60  548 

Dugger  v.   McKesson,   100   N. 

Car.  1  578 

Dunham     v.     Stuyvesant,     11 

Johns.   (N.  Y.)  569  558 

Du  Pont  v.  Davis,  30  Wis.  170     429 
Dwight  v.  Tyler,  49  Mich.  614     471 


Eastern  Ry.  Co.  v.  Allen,  135 

Mass.   13  590 

East  Hampton  v.  Kirk,  84  N. 

Y.  215  586 

East  Omaha  Land  Co.  v.  Jef- 

ries,  40  Fed.  386  58 

Eble  v.  State,  77  Kans.  179  605 
Edinger  v.  Woodke,  127  Mich. 

41  494 

Edmondson  v.   Anniston   City 

Land  Co.,  128  Ala.  589  591 

Edson  v.  Crangle,  62  Ohio  St. 

49  162,   425 

Edwards  v.  Woodruff,  25  Pa. 

Sup.  Ct.  575  160 

Edwards  &  Walsh  Const.  Co. 

v.  Jasper  Co.,  117  Iowa  365      547 
Eldridge   v.    Binghamton,    120 

N.  Y.  309  589 

Elgin  v.  Beckwith,  119  111.  367  271 
Elliott  v.  Pearl,  1  McLean, 

206  403 

Ellicott     v.     Pearl,     10     Pet. 

(U.  S.)  412  586,  587 

Ely  v.  Parsons,  55  Conn.  83  600 
Elyton  Land  Co.  v.  Denny,  108 

Ala.   553  595 

Emerson  v.  Taylor,  9  Maine  42 

185,  300,   325 
Emery  v.  Webster,  42   Maine 

204  412 

Erck  v.  Church,  87  Tenn.  575  593 
Evans  v.  Miller,  58  Miss.  120  570 
Evansville  v.  Page,  23  Ind. 

525  490 


TABLE  OF  CASES 


xxvii 


Everson  v.  Waseca,   44  Minn. 

247  257,  304 

Ewing  v.  Burnett,  1   McLean, 

266  590 

v.  Burnett,  11  Pet.  41       587 


Fahey  v.  Marsh,  40  Mich.  236  441 
Falls  Mfg.  Co.  v.  Oconto  R.  I. 

Co.,  87  Wis.  149  313 

Falter  v.  Packard,  219  111.  356  601 
Farris  v.  Bentley,  141  Wis.  671  169 
Ferch  v.  Konne,  78  Minn.  515  393 
Ferrie  v.  Sperry,  85  Conn.  337 

574,  575 

Ferris  v.   Coover,   10  Cal.   589     230 

Field  v.  Barling  149  111.  556         581 

Fisher  v.  Beard,  32  Iowa  346     584 

v.  Smith,  9  Gray  (Mass.) 

441  502 

Flagg    v.    Thurston,    13    Pick. 

(Mass.)   145  444 

Fleischfresser  v.   Schmidt,  41 

Wis.   223  490 

Fleming  v.  Cohen,  186   Mass. 

323  505 

v.     Kennedy,     4     J.     J. 

Marsh    (Ky.)    155  425 

Flynn  v.  Sparks,  10  Ky.  L.  960  499 
Foulke  v.  Bond,  41  N.  J.  K 

527  591 

Fourtelotte  v.  Pearce,  27  Nebr. 

57  586 

Fowler  v.  Hart,  54   U.  S.  381     298 
v.  Wood,   73   Kans.  511 

249,   250,   251,   296 
Fox  v.  Union  Sugar  Refinery, 

109   Mass.   292  584 

Fox    River   Flour    &c.    Co.    v. 

Kelley,  70  Wis.  287  500 

Francois    v.    Maloney,   56    111. 

399  172,  180 

Frank  v.  Goddin,  193  Mo.  390 

160,  167 

Franzini  v.  Layland,  120  Wis. 
72 

168,  252,  253,  293,  294,  308,  319 
Fratt  v.  Woodward,  32  Cal.  219 

412,  504 
Frederitzie  v.  Boeker,  193  Mo. 

228  385 

Freeland  v.  Pennsylvania  Ry. 

Co.,  197  Pa.   St.  529  243 

Freeman    v.    Bellegarde,    108 

Cal.  179  196,  503 

French  v.  Pearce,  8  Conn.  439  567 
Friday  v.  Henah,  113  Iowa  425  601 


Fry  v.  Stowers,  92  Va.  13 

231,  419 
Fuller  v.  Dauphin,  124  111.  542 

161,  314,  324 

.      v.  Shedd,  161  111.  462          196 
Fulton  Light  Co.  v.  State,  200 

N.  Y.  400  297 

G 
Galbraith     v.     Lunsford,     87 

Tenn.  89  568 

Gano  v.  Aldridge,  27  Ind.  294 

482,  483 
Gardiner   v.   Tisdale,   2    Wis. 

153  581,  584 

Gaskins  v.  Williams,  235  Mo. 

563  549 

Gates  v.  Lewis,  7  Vt.  511  437 

v.   Paul,   117  Wis.   170       474 
Gazzan    v.    Phillips,    20    How. 

(U.  S.)   372  51,  62 

Genesee  Chief,  12  How.  (U.  S.) 

443  424 

Gentleman    v.    Soule,    32    111. 

App.  271  547 

Gerke  v.  Lucas,  92  Iowa  79  59 

Gerrish  v.  Clough,  48  N.  H.  9     324 
Gibson   v.    Chouteau,    39    Mo. 

536  51 

v.  Poor,  21  N.  H.  440 

407,  408 
v.    United    States,    166 

U.  S.  271  2S7 

Giddens    v.    Mobley,    37    La. 

Ann.  900  589 

Gifford   v.   Lord   Yarborough, 

5  Bing.  163  249 

Gill  v.  Lydick,  40  Nebr.  508          168 
Gilman  v.   Riopelle,   18   Mich. 

145  447 

Ginn  v.  Brandon,  29  Ohio  St 

656  56 

Glover  v.  Wright,  82  Ga.  114    563 
Goltermann    v.     Schiermeyer, 

111  Mo.  404  590 

Goodman  v.  Myrick,  5  Ore.  65      56 
Goroski  v.  Tawney,  121  Minn. 

189  388,   395 

Gorton  v.  Rice,  153  Mo.  676        255 
Gouverneur    v.    National    Ice 

Co.,  134  N.  Y.  355        161  273,  314 
Gowen    v.    Philadelphia    Ex- 
change  Co.    5   Watts   &   S. 

(Pa.)  141  546 

Graham  v.  Hartnett,  10  Neb. 

517  601 


xxviii 


TABLE  OF  CASES 


Grand   Rapids   v.   Powers,   89 

Mich.  94  317 

Grand  Rapids  &  I.  Ry.  Co.  v. 

Butler,  159  U.  S.  87  169,  317 

Grand  Rapids  Ice  &c.  Co.  v. 
South  Grand  Rapids  Ice  &c. 
Co.,  102  Mich.  277 

282,  300,  326 
Grant   v.    Hemphill,    92    Iowa 

218  196 

v.  White,  63  Pa.  271        497 
Gray     v.     Deluce,     5     Gush. 

(Mass.)    9  270 

v.  Haas,  98  Iowa  502        601 
Green   Bay   &    M,    Canal   Co, 

v.  Hewitt,  55  Wis.  96    484 
v.    Telulah    Paper    Co., 

140  Wis.   417  168 

Gregory  v.   Knight,   50   Mich. 

61  405,  606 

Greist   v.    Amrhyn,    80    Coon. 

280  604 

Griffin  v.  Graham,  8  N.  Carr. 

96  413 

Griffith  v.  Holman,  23  Wash. 

354  313 

Grogan  v.  Knight,  27  Cal.  515  51 
Groner  v.  Foster,  94  Va.  650  248 
Guy  v.  Hermance;  5  Cal.  73  324 

H 
Haan   v.    Master,    132    Iowa 

709  601 

Haberman  v.  Baker,  128  N.  Y. 

253  486 

Hagan   v.    Campbell,   8    Port. 

(Ala.)    9  282 

Hall  v.  Davis,  36  N.  Y.  569          581 

v.     McLeod,     2     Mete. 
(Ky.)  98  546 

Halsey     v.      McCormick,      18 

N.  Y.  147  315 

Hamil    v.    Carr,    21    Ohio    St. 

358  51 

Hamilton  v.  Smith,  74  Conn. 

374  231 

Hammond   v.   Rose,    11   Colo. 

524  247 

v.  Shepard,  186  111.  235     311 
Handly  v.  Anthony,  18  U.   S. 

(5  Wheat.)  374  324,  425 

Hanson  v.  Rice,  88  Minn.  273 

170,  207,  279,  322,  394 
Hardin  v.   Jordan,   140  U.    S. 
371 

160,  161,  196,  255,   273,  276,  304, 
312,  322. 


Harriman  v.   Brown,  8  Leigh 

(Va.)  697  404 

Hartford   Iron   Mining   Co.   v. 

Cambria     Mining     Co.,     80 

Mich.  491  493 

Hartley  v.  Vermillion,  141  Cal. 

339  601 

Hartung    v.    Witte,    59    Wis. 

285  565 

Harvey     v.     Tyler,     2     Wall. 

(U.  S.)  328  590 

Hatch  v.   Lusignan,   117  Wis. 

428  589 

Hayden  v.  Brown,  33  Ore.  221 

472,  473 
Hayes  v.  Livingston,  34  Mich. 

384  547 

Hedrick  v.  Eno,  42  la.  411          51 
Heilbron   v.    St.   Louis   S.   W. 

Ry.,  52  Tex  Civ.  App.  575  600 
Heller  v.  Cahill,  138  Iowa  301  604 
Henderson  v.  Hatterman,  146 

111.  555  415 

Henderson  Bridge  Co.  v.  Hen- 
derson, 173  U.  S.  592  246 
Hennessey  v.   Old   Conony  & 

N.  R.  Co.,  101  Mass.  540  551 

Henry  v.  Henry,  122  Mich.  6        590 
v.  Richards,  52  Cal.  496     581 
Herrick  v.  Hopkins,  23  Maine 

217  434,   436 

Hess  v.  Rudder,  117  Ala.  525     567 

Hicks  v.  Coleman,  25  Cal.  122     567 

v.  Smith,  109  Wis.  540        324 

Highstone     v.     Burdette,     54 

Mich.    329  592 

Highway    Comrs.    v.    Beebe, 

55  Mich.  137  574,  576 

Higuera  v.    United    States,    5 

Wall.   (U.  S.)   827  415 

Hills  v.  Ludwig,  46  Ohio   St. 

373  234 

Hinckley  v.  Peay,  22  Utah  21    196 
Hittinger  v.  Eames,  121  Mass. 

539  594 

Hobart  v.  Hall,  174  Fed.  433     169 
Hobbs    v.    Cram,    22    N.    H. 

(2  Fort.)   130  564 

Hoboken    M.    E.    Church    v. 

Hoboken,  33  N.  J.  L.  13  549 

Hockmoth      v.      Des      Grand 

Champs,  71  Mich.  520  578 

Hodges    v.    Williams,    95    N. 

Car.  331  324 

Hollister  v.  Young,  42  Vt.  403    592 


TABLE  OF  CASES 


xxix 


Hoist  v.  Streitz,  16  Nebr.  249    490 
Hoodless  v.  Jenigan,   46   Fla. 

215  t  470 

Hopkins   Academy   v.   Dickin- 
son, 9  Gush.  (Mass.)  544 

318,  319 
Home  v.  Smith,  159  U.  S.  40 

53,  196,  255,  508 
Houghton    v.    Chicago    D.    & 
M,  Ry.  Co.,  47  Iowa  370 

198,  298,  315 
Howard  v.  Ingersoll,  54  U.  S. 

(13  How.)  381  315,  425 

v.  State,  47  Ark.  431          601 
Hubbard   v.    Manwell,   60   Vt. 

235  278,  309,  324 

Hughes   v.    Pickering,    14    Pa. 

St.   297  590 

Hunnicutt  v.  Peyton,  102  U.  S. 
333  231 

I 

Illinois  Cent.  R.  Co.  v.  Hough- 
ton,  126  111.  233  590 
v.    Illinois,    146     U.    S. 

387  162,  255,  425 

Illinois    Steel    Co.    v.    Bilot, 

100  Wis.,  418  165 

v.  Budzisz,  115  Wis.  68     595 
v.  Budzisz,  139  Wis.  281    410 
Impson  v.  Sac.  Co.  (Iowa),  98 

N.  W.  118  605 

Indiana  v.  Kentucky,  136  U.  S. 

479  425 

v.  Milk  Co.,  11  Fed.  389    163 
Ingraham     v.     Wilkinson,     4 

Pick.    (Mass.)    268  317 

Iowa  v.  Illinois,  147  U.  S.  1          425 
Ivey   v.   Cowart,   124   Ga.    159     409 


Jackson     v.     McConnell,     12 

Wend.  (N.  Y.)  421  564 

v.  McConnell,  19  Wend. 

(N.  Y.)  175  569 

v.       Schoonmaker,       2 

Johns.    (N.  Y.)    229         586 
James  v.  Drew,  68  Miss.  518      174 
v.   Howell,  41   Ohio   St. 

696  196 

Janesville    v.    Carpenter,    77 

Wis.   288  317 

Jefferis  v.  East  Omaha  Land 
Co.,  134  U.  S.  178 

244,  249,   284,  310 
Jennings,     Pars     Prima,     Ex 
parte  6  Cow.  (N.  Y.)  537  244 


Jerome,    Re    120    App.    Div. 

(N.  Y.)   297  604 

Johnson  v.  Archibald,  78  Tex. 

96  399,  412 

v.  Ballou,  28  Mich.  379        431 
v.   Burghorn,  212  Mich. 

19  263 

v.    Johnson,    14    Idaho 

561  163 

v.  Jones,  79  Ind.  141          248 
v.    Knippa     (Tex.     Civ. 

App.),  127   S.  W.   905     172 
Johnston    v.    Jones,    1    Black 

(U.  S.)   209  255,  320 

Johnstone  v.   Scott,   11   Mich. 

232  440,  581 

Jones  v.  Adams,  19  Nev.  78  247 
v.  Foster,  175  111.  459  593 
v.  Johnston,  18  How. 

(U.  S.)   150  248 

v.  Kimble,  19  Wis.  429 

173,  180,  391,  456  523 
v.  Lee,  77  Mich.  35  302 

v.  Pashby,  62  Mich.  614 

493,  494 

v.  Pashby,  67  Mich.  459     572 
v.     Soulard,     24     How. 

(U.  S.)   41  244 

v.  Wellcome,  141  Minn. 
352  141 

K 

Kaukauna   Water    Power    Co. 

v.  Green  Bay  &c.  Canal  Co., 

142  U.  S.  254  165 

Kehr  v.  Snyder,  114  111.  313          248 

Kellog  v.  Finn,  22  S.  Dak.  578     240 

Kennedy  v.  Lubold,  88  Pa.  246     231 

v.    Municipality    No.    2, 

10  La.  Ann.  54  324 

Kenyon  v.  Knipe,  2  Wash.  394    553 
Keokuk    &    Hamilton    Bridge 

Co.  v.   People,   145   111.   596 

246,  425 
Keyser  v.  Coe,  9  Blatchf.  (U. 

S.)   32  425 

Kidder  v.  Kennedy,  43  Vt.  717    418 
Killebrew  v.  Mauldin,  145  Ala 

654  589 

Kimball   v.   Kenosha,   4  Wis. 

321  584 

King  v.  St.  Louis,  98  Fed.  641     287 
Kingston  v.   Guck,   155   Mich. 

264  592 

Kinkead  v.  Turgeon,  74  Nebr. 

573  164,  168 


KXX 


TABLE  OF  CASES 


Kinney     v.     Farnsworth,     17 

Conn.   355  416 

Kitchen     v.     Chantland,     130 

Iowa  618  563,  565 

Kleven  v.  Gunderson,  95  Minn. 

246  386,   387 

Knight  v.  Elliott,  57  Mo.  317 

51,  177 
Knippa  v.  Umland,  27   S.  W. 

1138  172 

Knox  v.  Clark,  123  Mass.  216  578 
Konkel  v.  Pella,  122  Wis.  143  602 
Koons  v.  Bryson,  69  Fed.  297  231 
Kramer  v.  Goodlander,  98  Pa. 

366 

Krause  v.  Nolte,  217  111.  298  567 
Kraut  v.  Crawford,  18  Iowa 

549  255 

Krider  v.  Milner,  99  Mo.  145 

401,   411,   563 
Kruger  v.   LeBlanc,   70  Mich. 

76  600 

L 
Ladd  v.  Osborne,  79  Iowa  92 

257,  276 

Lake  Erie,  etc.,  R.  Co.  v.  Wit- 
ham,   155   111.   514  547 
Lake  Shore  &  M.  S.  Ry.  Co. 

v.  Johnson,  157  Mich.  115  591 
Laly  v.  Rossman,  82  Wis.  147  207 
Lamb  v.  Rickets,  11  Ohio  311  255 
Lamme  v.  Buse,  70  Mo.  463  164 
Lamoreux  v.  Huntley,  68  Wis. 

24  592 

Lampe   v.   Kennedy,    45   Wis. 

23  490 

Lampman  v.  Van  Alstyne,  94 

Wis.  417  160 

Lamprey  v.  Metcalf,  52  Minn. 

181  161,  314 

v.   State,   52   Minn.   182 
170,  253,  255,  275,  276,  277, 
280,  281,  322. 
Langdon  v.  New  York,  93  N.  Y. 

129  415 

Langworthy  v.  Myers,  4  Iowa 

18  587 

Lattig  v.  Scott,  17  Idaho  506  168 
Lawler  v.  Rice  County,  147 

M4nn.  234  395 

Lawless   v.  Wright,   39    Tex. 

Civ.  App.  26  595 

Lawrence  v.  Tennant,  64  N.  H. 

532  418 

Lawson  v.  Mowry,  52  Wis.  219     500 


Leary  v.  Leary,  50  How.  Prac. 

(N.   Y.)    122  589 

Ledyard  v.  Ten  Eych,  36  Barb. 

(N.  Y.)    102  314 

Lee  v.  Harris,  206  111.  428  548 

Leonard   v.   Baton   Rouge,   39 

La.  Ann.  275  290 

Levy  v.  Maddox,  81  Tex.  210      571 

v.   Yerga,   25   Nebr.  764     586 

Lewis  v.  Ogram,  149  Cal.  505     562 

v.  Prien,  98  172,  391 

Lincoln  v.  Davis,  53  Mich.  375 

170,  302 
v.  Edgecomb,  28  Maine 

275  172,  182 

Lindell  v.  McLaughlin,  30  Mo. 

28  569 

Lindley  v.  Johnson,  42  Wash. 

257  568 

Long     v.     Merrill,     24     Pick. 

(Mass.)   157  172 

Longworth  v.  Sedevic,  165  Mo. 

221  600,  601 

Lord  v.  Sawyer,  57  Cal.  65  594 
Loring  v.  Norton,  8  Maine  61  185 
Lorman  v.  Benson,  8  Mich.  18 

160,  170,  262 
Lovingston    v.    St.    Clair    Co., 

64  111.  56  160,  243,  244,  315 

Low  v.  Tibbetts,  72  Maine  92  486 
Ludwig  v.  Overly,  19  Ohio 

Circ.  Ct.  709  325 

Lunt  v.  Holland,  14  Mass.  149  312 
Lyle  v.  Lesia,  64  Mich.  16  606 

Lyons  v.  Mullen,  78  Nebr.  151     604 

M 

McAfee  v.  Arline,  83  Ga.  645      466 
McAfferty   v.    Conover's   Les- 
see, 7  Ohio  St.  99  412 
McAlpine   v.   Reicheneker,   27 

Kans.    257  172 

McBride     v.     Steinweden,     72 

Kans.  508  249,  250,  251 

v.    Whitaker,    65    Nebr. 

137  160,  312 

McCarty  v.  Bauer,  3  Kans.  237  574 
McCausland  v.  Fleming,  63 

Pa.  36  418 

McClintock  v.  Rogers,  11  111. 

279  490,    581 

McConnell     v.     Rathbun,     46 

Mich.  303  432 

McCormich     v.     Barnum,     10 

Wend.    (N.  Y.)    104        559 
v.  Hute,  78  111.  363  50? 


TABLE  OF  CASES 


xxxl 


McCoys   v.   Galloway,   3   Ohio 

282  413 

McCrath  v.  Myers,  126  Mich. 

204  196 

McFarlane  v.  Kerr,  10  Bosw. 

(N.   Y.)    249  590 

Mclvers  v.  Walker,  9  Cranch. 

(U.  S.)  173  51,  415 

Mack  v.  Bensley,  63  Wis.  80        489 
McKenzie     v.     Gleason,     184 

Mass.  452  502 

MicKinney    v.     McKinney,     8 

Ohio  St.  423  51 

McLennan  v.  Prentice,  85  Wis. 

427  160,  324 

McManus    v.    Carmichael,    3 

Iowa  1  164 

McNeely  v.  Langan,  22   Ohio 

St.  32  596 

Mahler   v.   Brumder,   92   Wis. 

477  548 

Main  v.  Killinger,  90  Ind.  165    564 
Maire  v.  Kruse,  85  Wis.  302 

602,  608 
Makepeace    v.    Bancroft,    12 

Mass.  469  185 

Mariner  v.  Shulte,  13  Wis.  692    168 
Marion  v.  Skillman,  127  Ind. 

130  547,  550 

Marsh  v.  Mitchell,  25  Wis.  706 

490,  581 
v.    Stephenson,    7    Ohio 

St.  264  172,  179 

Marshal   Dental    Mfg.    Co.    v. 

State,  226  U.  S.  460  167 

Martin  v.  Carlin,  19  Wis.  454        454 
v.  Hughes,  90  Fed.  632       231 
Martz  v.  Williams,  67  111.  306 

172,  180,  456 
Mason  v.  Braught,  33  S.  Dak. 

559  7,  388,  389 

Massie    v.    Watts,    6    Cranch 

(U.  S.)  148  450,  451,  452 

Mauldin  v.  Cox,  67  Cal.  387        587 
Maysville   v.   Truex,   235   Mo. 

619  172 

Mead  v.  Illinois  Cent.  Co.,  122 

Iowa  291  595 

Meade  v.  Topeka,  75  Kans.  61     600 
Medley  v.  Robertson,  55  Cal. 

396  55 

Menasha  Wooden-Ware  Co.  v. 

Lawson,  70  Wis.  600 

254,  255,  259,  279 
Mendota    Club    v.    Anderson, 

101  Wis.  479  165,  196,  324 


Merritt    v.     Westerman,     165 

Mich.  535  596 

Middleton     v.     Pritchard,     3 

(Scam.)  111.  510  168 

Miles  v.  Sherwood,  84  Tex.  488     508 
Miller    v.    Hepburn,    8    Bush. 
(Ky.)  326  272,  316 

v.  Topeka  Land  Co.,  44 
Kans.  354 

180,  456,  463,  464 

Mills  v.  Buchanan,  14  Pa.  59        198 
v.  Evans,  100  Iowa  712       601 
v.  Penny,  74  Iowa  172        401 
Minto  v.  Delaney,  7  Ore.  337      324 
Minton  v.  Steele,  125  Mo.  181      320 
Missouri  v.  Kentucky,  78  U.  S 
(11  Wall.)  395 

421,  425,  491,  492 
Missouri  P.  R.  Co.  v.  Nebras- 
ka, 164  U.  S.  403  246 
Mitchell  v.  Smale,  140  U.  S. 

406         196,  256,  273,  276,  304,  314 
Mobile  Transportation  Co.  v. 

Mobile,  153  Ala.  409  296 

Moffett  v.  Brewer,  1  G.  Greene 

(Iowa)  348  324 

Monkton  v.  Attorney  General 

2  Russ.  &  M.  147  230 

Montague     v.     Marunda,     71 

Nebr.  805  598 

Montecito  Valley  Water  Co.  v. 

Santa  Barbara,  144  Cal.  578      589 
Montello,   The,   11   Wall.    (U. 

S.)  411  313 

Montgomery  v.  Hines,  134  Ind. 
221  496 

v.  Lipscomb,  105  Tenn. 

144  231 

Moody  v.   Nichols,   16   Maine 

23  185 

Moore  v.  Farmer,  150  Mo.  33  296 
Moran  v.  Lesotte,  54  Mich.  90  507 
Moreland  v.  Page,  2  Iowa  139 

173,  180,  456 
Morgan  v.  Livingston,  6  Mart. 

(La.)  19  288,  290 

Morris  v.  Beardsley,  54  Conn. 

338  300,  325 

Morrow  v.  Whitney,  95  U.  S. 

551  508 

Morton  v.  Folger,  15  Cal.  275 

231,  404,  417 
v.    Nebraska,    21    Wall. 

(U.  S.)  660  52 

Moseley   v.   Davies,    11   Price 
162  403 


TABLE  OP  CASES 


Mosher  v.  Berry,  30  Maine  83 

179,  185 

Mott  v.  Smith,  16  Cal.  533  51 

Muller  v.  Landa,  31  Tex.  265  506 
Mulry  v.  Norton,  100  N.  Y.  422 

266,  267,  291 
Murphy    v.    Riemenschneider, 

104  111.  520  581 

Murray   v.   Hudson,   65   Mich. 

670  586,  587 

Murry  v.  Sermon,  8  N.  Car.  56  245 
Musser  v.  Hershey,  42  Iowa 

356  323,  324 

N 

Naylor  v.  Cox,  114  Mo.  232  249 

Nebraska  v.  Iowa,  143   U.   S. 

359  250,  251,  310,  425 

Nee-Pee  Nauk  Club  v.  Wilson, 

96  Wis.  290  160 

Newark  v.  Watson,  56  N.  J.  L. 

667  550 

Newcomb  v.  Lewis,  31  Iowa 

488  180,  181 

New  Orleans  v.  United  States, 

10  Pet.   (U.  S.)   662  244,  249 

Newsom   v.   Pryor,   7   Wheat. 

(U.  S.)  7  51,  415 

Newton  v.  Eddy,  23  Vt.  319  309 

Nicolai  v.  Davis,  91  Wis.  370  606 
Niles  v.  Patch,  13  Gray 

(Mass.)  254  416 

Nixon  v.  Porter,  34  Miss.  697  232 
Norcross  v.  Griffiths,  65  Wis. 

599  323,  324 

Northern    Pine    Land    Co.    v. 

Bigelow,  84  Wis.  157 

248,  254,  255,  259,  270, 
277,  278,  287,  300,  302,  307,  317 
North  River  Bank  v.  Aymar,  3 

Hill  (N.  Y.)  262  569 

Northumerland     Coal     Co.   v. 

Clement,  95  Pa.  126  578 

Norway  v.  Jensen,  52  111.  373       425 

Noyes  v.  Collins,  92  Iowa  566      311 

v.  Heffernan,  153  111.  339     590 

Nutter  v.  Tucker,  67  N.  H.  185 

232 
O 

Oatman  v.  Andrew,  43  Vt.  466  418 
O'Brien  v.  McGrane,  27  Wis. 

446  172,  180,  192,  391,  456 

Ocean  City  Association  v. 

Shriver,  64  N.  J.  L.  550  244 


O'Connell  v.  Chicago  Terminal 

T.  Ry.  Co.,  184  111.  308  601 

O'Donnell  v.  Kelsey,  10  N.  Y. 

412  255 

O'Farrell  v.   Harney,  51  Cal. 

125  490 

Olson  v.  Huntamer,  6  S.  Dak. 

364  161,  196,  273,  314 

v.  Thorndike,  76  Minn. 

399  196,  255 

Orr  v.  O'Brien,  77  Iowa  253          606 
Osteen  v.  Wynn,  131  Ga.  209 

566,  572 
Overing  v.  Russell,  32  Barn. 

(N.  Y.)  263  589 

Owings  v.  Freeman,  48  Minn. 

483  488 

Owsley  v.  Matson,  156  Cal.  401     589 
Oxton  v.  Groves,  68  Maine  371    486 


Packer  v.  Bird,  71  Cal.  134         164 
v.    Bird,   137   U.    S.    661 

167,  324 
Palmer     v.      Dougherty,      33 

Maine  502  241 

Parker  v.  Smith,  17  Mass.  413      584 
Parkey  v.  Galloway,  147  Mich. 

693  601 

Parks  v.  Boynton,  98  Pa.  370 

172,  189 
Patterson  v.  Jenks,  2  Pet  (U. 

S.)  216  51 

Payne  v.  Hall,  (Iowa)  185  N. 

W.  912  249 

Peabody  v.  Leach,  18  Wis.  657 

693 
Pea    Patch    Island,   Re,   Fed. 

Cas.  No.  18311  425 

People  v.  Central  Ry.  Co.,  42 
N.  Y.  283  425 

v.  Economy  Light  &  P. 
Co.,  241  111.  290  168 

v.  Kirk,  162  111.  138  165 

v.  New  York  &  Co.,  68 

N.  Y.  71  324 

v.  Reed,  81  Cal.  70      548,  549 
v.  Wolverine   Mfg.   Co., 

141  Mich.  455  548 

Peoria  v.  Central  Nat.  Bank, 

224  111.  43  259,  260 

Pereles  v.  Gross,  126  Wis.  122     193 
v.  Magoon,  78  Wis.  27 

172,  180,  391,  456 
Perkins  v.  Adams,  132  Mo.  131    249 


TABLE  OF  CASES 


xxxiil 


Perry  v.  Staple,  77  Nebr.  656  604 
Peters  v.  State,  96  Tenn.  682  161 
Peuker  v.  Canter,  62  Kans. 

363  248,  249,  250,  251,  324 

Pewaukee  v.  Savoy,  103  Wis. 

271  165,  324 

Phillips   v.    Stewart,    133    Ky. 

134  402,  411 

Pickett  v.  Nelson,  79  Wis.  9 

561,  564 
Pittsburgh   &  L.  A.  I.  Co.  v. 

Lake  Superior  Iron  Co.,  118 

Mich.  109  563,  572 

Poignard  v.  Smith,  6  Pick.  172  586 
Pollard  v.  Hagan,  44  U.  S. 

(3.  How.)   212  324 

Porter  v.  Gaines,  151  Mo.  510 

172,  178 
v.   International   Bridge 

Co.,  200  N.  Y.  234  548 

Posey  v.  James,  75  Tenn.  (7 

Lea)  98  324 

Powell  v.  Oilman,  38  111.  App. 

611  581 

Pratsch  v.  Aberdeen  Packing 

Co.,  7  Wash.  346  196 

Prescott  v.  Hawkins,  22  N.  H. 

191  231 

Prichard  v.  Atkinson,  3  N.  H. 

335  600 

Priewe  v.  Wisconsin  State  &c 

Improvement    Co.,    93    Wis. 

534  165,  324 

Proctor   v.    Maine    Cent.    Ry. 

Co.,  96  Maine  458  434 

Proprietors  of  Kennebee  Pur- 
chase  v.   Tiffany,    1   Maine 

219  185 

Purtle    v.    Bell,    225    111.    523 

566,  568 


Quinnin  v.  Reimers,  46  Mich. 
605  172,   186 

R 

Racine   v.    Emerson,   85   Wis. 

81  410 

Ralston  v.  Weston,  46  W.  Va. 

544  607 

Randleman  v.  Taylor,  94  Ark. 

511  563,  566 

Ratcliffe    v.    Gray,   42    N.    Y. 

(3  Keys)  510  578 

Reed  v.  Farr,  35  N.  Y.  113  593 

v.    Lammel,    28    Minn. 
306  479 


Reed  v.  Proprietor  of  Locks' 

Canals,  8  How.  (U.  S.)  274  435 
Rees  v.  McDaniel,  115  Mo.  145  249 
Reid  v.  Mitchell,  95  Ind.  401  415 
Reilly  v.  Racine,  51  Wis.  526 

606,   607 
Reinert  v.  Brunt,  42  Kans.  43 

396,  405 
Reiter  v.   McJunkin,   173   Pa. 

82  593 

Repass    v.    Farmers,    5    J.   J. 

Marsh  (Ky.)  648  172 

Reusen  v.  Lawson,  91  Va.  226    231 
Reynolds  v.  Hood,  209  Mo.  611     572 
Rhode    Island     v.     Massachu- 
setts, 4  How.  (U.  S.)  591          589 
Rhodes     v.     Halvorson,     120 

Wis.  99  601 

Rice   v.   Ruddiman,    10   Mich. 

125  262,  302 

Ricker  v.  Barry,  34  Maine  116 

436,  438 
Ridgway   v.   Ludlow,   58   Ind. 

248  314 

Riley   v.    Buchanan,    116    Ky. 

625  600 

Rioux  v.  Cornier,  75  Wis.  566    468 
Riverside  Tp.  v.  Pennsylvania 

Ry.,  74  N.  J.  L.  476  600 

Roberts  v.  Decker,   120  Wis. 

102  500 

Robinson  v.  White,  42  Maine 

209  504 

Rooney    v.    Stearns    County, 

130  Minn.  176  322 

Ross  v.  Faust,  54  Ind.  471  324 

v.  Thompson,  78  Ind.  90     600 

Rowe  v.  Smith,  51  Conn.  266     425 

Powell    v.    Weinemann,     119 

Iowa  256  398,  570 

Royal  v.  Chandler,  83  Maine 

150  416 

Rumsey  v.  New  York  Ry.  Co., 

133  N.  Y.  79  246 

Russell  v.  Hunnicutt,  70  Tex. 

657  231 

v.  Maxwell  Land  Grant 

Co.,  158  U.  S.  253        8,  389 
Rust  v.  Boston  Mill  Corp.,  6 

Pick.   (Mass.)   158 

185,  255,  305 
Rutherford  v.  Tracy,  58  Mo. 

325  570 


rsxiv 


TABLE  OF  CASES 


S 

St.  Anthony  Falls  Water  Pow- 
er  Co.   v.    St.    Paul   Water 

Comrs.,  168  U.  S.  349 

196,  246,  249,  313 
St.    Clair    v.    Lovingston,    23 

Wall  (U.  S.)  46 

56,  244,  286,  310 
St.  Louis  v.  Missouri  Pac.  Ry. 

Co.,  114  Mo.  13  311 

St.  Louis  I.  M.  &  S.  Ry.  Co. 

v.  Ramsey,  53  Ark.  314 

160,  260,  297,  298,  315 
St.  Louis  Public  Schools  v. 

Risley,  10  Wall.  (U.  S.)  91        288 
St.  Louis  v.  Rutz,  138  U.  S. 

226  168,  244,  245,  246,  249, 

295,  296,  303,  312,  324,  508 
St.  Paul  v.  Chicago,  R.  &  C. 

Co.,  45  Minn.  387  589 

St.  Paul  v.  Chicago  Ry.   Co., 

63  Minn.  339  549 

St.  Paul  &  C.  R.  Co.  v.  Schur- 

meir,  7  Wall.  (U.  S.)  286 

56,  163,  196,  198,  255,  264,  304,  314 
Sanborn  v.  Mueller,  38  Minn. 

27  479 

Sanford  v.  McDonald,  53  Hun 

(N.  Y.)  263  564 

Sayers  v.  Lyons,  10  Iowa  249     198 
Scheifert  v.  Briegel,  90  Minn. 

125  301,  322,  326 

Schilling  v.  Rominger,  4  Colo. 

100  247 

Schneider   v.    Botsch,    90   111. 

577  596 

Schurmeier  v.  St.  Paul  &  C. 

Ry.  Co.,  10  Minn.  82 

164,  166,  252,  253,  255 
Sears  v.  Chicago,  247  111.  204  549 
Security  Land  &  Exploration 

Co.  v.  Burns,  87  Minn.  97 

58,  207,  255,  274,  281,  292,  317 
Security  Land  &  Exploration 

Co.  v.  Burns,  193  U.  S.  179 

390,  415 
Serry  v.  City  of  Waterbury,  82 

Conn.  567  502 

Seidschlag  v.  Antioch,  207  111. 

280  605 

Sellers  v.  Reed,  46  Tex.  377 

172,   188 
Severy   v.    Central    Pac.    Ry. 

Co.,  51  Cal.  194  486 


Shaffer   v.   Weech,   34   Kans. 

595  405 

Shanline  v.  Wiltsie,  70  Kans. 

177  593 

Shea  v.  Ottumwa,  67  Iowa  39 

581 
Shearer  v.  Middleton,  88  Mich. 

621  595 

Sheppard  v.  Wilmott,  79  Wis. 

!5  461 

Sherin  v.  Brackett,  36  Minn. 

152  596 

Sherman  v.  King,  71  Ark.  248    568 
Sherwin   v.    Bitzer,   97   Minn. 

252  255 

Shipp  v.  Miller,  2  Wheat.  (U. 

S.)  316  51,  415 

Shively  v.  Bowlby,  152  U.  S. 

1  63,  163,  244,  303 

Shoemaker  v.  Hatch,  13  Nev. 

261  164 

Shufeldt  v.  Spaulding,  37  Wis. 

662  258,  485 

Simmons   Creek   Coal   Co.   v. 

Doran,  142  U.  S.  417  508 

Simpson    v.     DeRamerez,    50 
Tex.  Civ.  App.  25  231 

v.  Neill,  89  Pa.  St.  183    324 
Silver    Creek   Cement    Co.   v. 
Union    Lime    Co.,    138    Ind. 
297  460 

Sizor  v.  Logansport,  151  Ind. 

626  196 

Slauson   v.   Goodrich   Transp. 

Co.,  99  Wis.  21  476 

Small  v.  Binford,  41  Ind.  App. 

440  604 

Smith  v.  Boone,   84  Tex.  526     581 
v.  Forrest,  49  N.  H.  230 

416,  418 

v.  Houston,  6  Ohio  101  549 
v.  Hitchcock,  38  Nebr. 

104  590 

v.  Johnson,  71  Fed.  648  248 
v.  Levinus,  8  N.  Y.  472  324 
v.  Montgomery,  3  Idaho 

472  582 

v.  Prewit,  2  A.  K.  Marsh 

(Ky.)  155  172 

v.  Slocomb,  75  Mass.  (9 

Gray)   36  486 

Snoddy  v.  Bolen,  122  Mo.  479 

500,  552 

Snow  v.  Mt.  Desert  I.  Real  Es- 
tate Co.,  84  Maine  14  324 


TABLE  OF  CASES 


XXXV 


Southern   Ry.    Co.   v.    Combs, 

124  Ga.  1004  600 

South  Hampton  v.  Fowler,  54 

N.  H.  197  232 

South  Parks  Comrs.  v.  Ward, 

248  111.  299  549 

Speir  v.  Utrecht,  121  N.  Y.  420  600 
Squire  v.  Greer,  2  Wash.  209  462 
Stadin  v.  Helin,  76  Minn.  497 

10,  387,  392 

Stafford  v.  King,  30  Tex.  257  239 
Stanford  v.  Taylor,  18  How. 

(U.  S.)  409  51 

State  v.  Auchard,  22  Mont.  14  600 
State  v.  Cameron,  2  Chand. 

(Wis.)  172  424 

State  v.  Jones,  143  Iowa  398  167 
State  v.  Kansas  City  &  C.  R., 

45  Iowa  139  601 

State  v.  Keller,  11  Lea.  399  577 
State  v.  Lloyd,  133  Wis.  468 

600,  601 
State  v.  Mincie  Pulp  Co.,  119 

Tenn.  47  164 

State  v.  Nolegs,  40  Okla.  479  164 
State  v.  Rixie,  50  Wash.  676  600 
State  v.  Venice  of  America 

Land  Co.,  160  Mich.  680  165 

State  v.  Washington,  80  Tenn. 

378  600 

State  v.  Wilson,  42  Maine  9  600 
Stearns  v.  Hendersass,  9 

Cush.   (Mass.)   497  593 

Steele    v.    Taylor,    3    A.    K. 

Marsh  (Ky.)  225  240,  414 

Stephens  v.  Leach,  19  Pa.  262  588 
Stephenson  v.  Goff,  10  Rob 

(La.)  99  283 

Stevens  v.  Patterson  &  N.  Ry. 

Co.,  34  N.  J.  L.   (5  Vroom) 

532  324 

Stewart  v.  Carleton,  31  Mich. 

270  405 

Stewart  v.  Frink,  94  N.  Car. 

487  600 

Stinson   v.    Butler,    4   Blackf. 

(Ind.)  285  166 

Stone     v.     Clark,     1     Mete. 

(Mass.)  378  505 

Stoner  v.  Rice,  121  Ind.  51 

168,  276 
Stonewall    Phosphate    Co.    v. 

Peyton,  39  Fla.  726  60 

Stout  v.  Woodward,  71  N.  Y. 

590  557 


Strange  v.  Spalding,  17  Ky.  L. 

305  310,  324 

Stumpf  v.  Osterhage,  94  111. 

115  590 

Sultana,  The,  v.  Chapman,  5 

Wis.  454  162 

Summerlin  v.  Hesterly,  20  Ga. 

689  412 

Surget  v.  Little,  13  Miss.  319  583 
Sweringen  v.  St.  Louis,  151 

Mo.  348  283,  299,  311 


Taft  v.  Rutherford,  66  Wash. 

256  574,  576 

Tallmadge     v.     East     River 

Bank,  26  N.  Y.  105  584 

Farpenning    v.     Cannon,     28 

Kans.  665  405 

Tate  v.  Foshee,  117  Ind.  322        568 
Tatum  v.   St.  Louis,  125  Mo. 

647  315 

Taylor   v.    Brown,    5    Cranch 

(U.  S.)  234  51 

v.  Fomby,  116  Ala.  621 

231,  237 

v.  Hopper,  62  N.  Y.  649    581 
v.  Pearce,  179  111.  145         602 
Tewksbury     v.     French,     44 

Mich.  100  439 

Tex  v.  Pflug,  24  Nebr.  666  586 

Thayer    v.    Bacon,    3    Allen 

(Mass.)   163  563 

Thoen  v.  Roche,  57  Minn.  139     405 
Thomas  v.  Ashland  &c  R.  Co., 

122  Wis.  519  255,  307 

v.  Eckard,  88  111.  593  581 

v.  Ford,  63  Md.  346  600 

Thompson  v.  Southern  Califor- 
nia M.  R.  Co.,  82  Cal.  497          465 
Thornton  v.   Smith,  Grant  & 

Co.,  10  R.  I.  477  248 

Thorson  v.  Peterson,  10  Biss. 

530  162 

v.  Peterson,  9  Fed.  519        424 
Thousand   Island    Park  Assn. 

v.  Tucker,  173  N.  Y.  203  548 

Tinicum  Fishing  Co.  v.  Carter, 

61  Pa.  St.  11  324 

Titus  v.  Morse,  40  Maine  348 

570 

Toby  v.  Secor,  60  Wis.  310          410 
Tolleston   Club   v.    Slate,   141 

Ind.  197  53,  385 

Toney  v.  Knapp,  142  Mich.  652    592 


xxxvi 


TABLE  OF  CASES 


Toudouze  v.  Keller  (Tex.  Civ. 

App.),  118  S.  W.  185  191 

Treat  v.   Chipman,  35   Maine 

34  300,  325 

Trussel  v.  Lewis,  13  Nebr.  415 

566,  567 
Trustees  of  Schools  v.  Schroll, 

120  111.  509  161,  312,  503 

Turnbull     v.     Schroeder,     29 

Minn.  49  581 

Turner  v.  Baker,  64  Mo.  218         566 
v.  Holland,  65  Mich.  453 

317,  509 
Turner   Palls  Lumber   Co.   v. 

Burns,  71  Vt.  354  231 


Union  College  v.  Wheeler,  59 

Barb.  585  586 

United  States  v.  Ashton,  170 
Fed.  509  303 

v.  Curtner,  38  Fed.  1  55 

v.    Montello,    20    Wall. 

(U.  S.)  430  313 

v.  Peterson,  64  Fed.  145     424 
v.  Rio  Grande  D.   &  I. 
Co.,  174  U.  S.  690 

247,  313 

v.  Rodgers,  150  U.  S. 
249  424 

v.  Sutter  21  How.  170     581 


Van    Deusen    v.    Turner,    12 

Pick.  (Mass.)  532  231 

Van    Matre    v.    Swank,    147 

Wis.  93  591 

Van   Wanning   v.    Deeter,    78 

Nebr.  282  601 

Vaughn  v.  Tate,  64  Mo.  491 

57,   177 

Vauth  v.  Landis,  44  Hun.  626        569 
Vick    v.    Vicksburg,    1    How. 

(Miss.)  379  547 

Victoria  v.  Schott,  9  Tex.  Civ. 

App.  332  310 

Victoria  v.  Victoria  Co.,  94  S. 

W.  368  589 

Vosburgh  v.  Teator,  32  N.  Y. 

561  557,  563 

W 

Walcott  Tp.  v.  Skauge,  6  N. 

Dak.  382  600 

Walker    v.    Board    of    Public 

Works,  16  Ohio  540  168,  324 


Walker   v.   Boston   &    M.   Ry. 

Co.,  3  Cush.    (Mass.)    1  305 

Walker  v.  David,  68  Ark.  544        475 
Walker  v.  Shepardson,  4  Wis. 

486  324 

Wallace  v.  Cable,  87  Kans.  835 

548,  605 
Wallace  v.  Driver,  61  Ark.  429 

246,  249 
Wallace  v.  Goodall,  18  N.  H. 

439  231,  578 

Wallowa  Co.  v.  Wade,  43  Ore. 

253  600 

Ward  v.   Cochran,   150   U.   S. 

597  590 

Ware  v.  McQuinn.  7  Tex.  Civ. 

App.  107  ;;,  '      172 

Waring  v.  Little  Rock,  62  Ark. 

408  600 

Warren  v.  Chambers,  25  Ark. 

120  314 

v.   Frederichs,    76    Tex. 

647  596 

Washington  Ice  Co.  v.  Short- 
all,  101  111.  46  324 
Washington      Rock      Co.      v. 

Young,  29  Utah  108          240,  411 
Waterman     v.     Johnson,     13 

Pick.  (Mass.)  261  161,  413 

Watrous  v.  Morrison,  33  Fla. 

261  561,  564,  566 

Watson    v.    Home,    64   N.    H. 

416  317 

Watson  v.  Peters,  26  Mich.  508     509 
Wayne  Co.  Bank  v.  Stockwell, 

84  Mich.  586  606 

Webb    v.    Demopolis,    95   Ala. 

116  166,  550,  607 

Webber    v.    Axtell,    94    Minn. 

375  244,  255 

Webber    v.     Pere     Marquette 

Boom  Co.,  62  Mich.  626 

66,  168,  170 
Weisbrod  v.  Chicago  &  N.  W. 

Ry.  Co.,  18  Wis.  35  554 

v.  Chicago  &  N.  W.  Ry. 

Co.,  21  Wis    602  584 

Wegge    v.   Madler,    129   Wis. 

412  496 

Welder  v.  Carroll,  29  Tex.  317     172 
Welles  v.  Bailey,  55  Conn.  292 

249,  250,  251,  311,  315,  316,  324 
Wells  v.  Bentley,  87  Ark.  625  593 
Welton  v.  Poynter,  96  Wis. 

346  410 


TABLE  OF  CASES 


xxxvii 


Wendell   v.   People,   8   Wend. 

(N.  Y.)  183  198 

Wesley  v.  Sargent,  38  Maine 

315  564 

Westfelt    v.    Adams,    131    N. 

Car.  379  231 

Westphal  v.  Schultz,  48  Wis. 

78  173,   175,   180,  456 

Wheeler  v.  Winn,  53  Pa.  122      586 
Whetstone  v.  Hill,  130  Iowa 

637  600 

Whitaker  v.  McBride,  197  U. 

S.  510  255 

White  v.  Jefferson,  110  Minn. 

276  549 

v.  Liming,  93  U.  S.  514      507 

v.  McNabb,  140  Ky.  828      596 

v.  Smith,  37  Mich.  291      584 

White's   Bank  v.   Nichols,   64 

N.  Y.  71  500 

Whiting  v.  Hoglund,  127  Wis. 

135  548 

v.  Gardner,  80  Cal.  78        581 
Whitney    v.    Detroit    Lumber 

Co.,  78  Wis.  240 

207,  254,  277,  281,  507 
Widdecombe  v.  Chiles,  173  Mo. 

195  249 

Wilder  v.  Aurora  &  C.  Trac- 
tion Co.,  216  111.  493  589 
Williams  v.  St.  Louis,  120  Mo. 

403  194 

Willow  River  Club  v.  Wade, 

100  Wis.  99  313 

Wilson  v.  Acree,  97  Tenn.  378      600 
v.  Hoffman,  54  Mich.  246    406 
Winans  v.  Cheney,  55  Cal. 

567  453 

Winnisimmet    v.    Wyman,    11 

Allen   (Mass.)   432  325 

Winslow   v.    Reed,   89    Maine 

B7  455 

Witham  v.  Cutts,  4  Maine  31 

172,  183 
Witter  v.  Damitz,  81  Wis.  385      608 


Wolf  v.  Ament,  1  Grant,  Cas. 

(Pa.)  150  591 

Wolfe  v.  Scarborough,  2  Ohio 

St.  361  172,  180 

Wollman  v.  Ruehle,  104  Wis. 

603  410 

Wonson  v.  Wonson,  14  Allen 

(Mass.)  71  255,  306 

Wood  v.  Appal,  63  Pa.  210 

272,  498 
v.      Foster,      8      Allen 

(Mass.)  24  416 

v.  Fowler,  26  Kans.  682 

164,  167,  249 
v.  Livingston,  11  Johns 

(N.  Y.)  36  560 

v.    McAlpine,   85    Kans. 

657  249 

Woodruff  v.  Paddock,  56  Hun 

(N.  Y.)  288  604 

Woods  v.  West,  40  Nebr.  307 

581 
Wooster  v.  Butler,   13  Conn. 

309  404 

Wright  v.  Mattison,  18  How. 

(U.  S.)  50  590 

Wunnicke    v.    Dederich,    160 

Wis.  462  11,  410 

Wyatt   v.    Savage,    11    Maine 

429  172,  184,  185 

Wynne   v.   Alexander,    29    N. 
Car.  237  412 

Y 

Yanish   v.   Tarbox,    49    Minn. 

268  237,  395 

Yates  v.  Milwaukee,  10  Wall. 

(U.  S.)  497  265 

Young  v.  Cosgrove,  83  Iowa 

682  458 


Zirngibl  v.  Calumet  &  C.  Dock 
Co.,  157  111.  430 


90 


SURVEYING 
AND    BOUNDARIES 


CHAPTER  I 

LAND  SURVEYING 

Sec.  Sec. 

1.  Generally.  «•  When    no    original   monument 

2.  History.  can  be  found. 

3.  Metes  and  bounds.  12.  Instruments     and     chains     or 

4.  The    rectangular    system.  tapes. 

5.  Fixed  monuments.  J3-  Old  surveys  presumed  correct. 

6.  Courses.  J4-  Witness   trees. 

7.  Distances.  T5-  Corners. 

8.  Courses  and  distances  yield  to      l6-  Corners  _  marked    by    mounds 

fixed   monuments.  and  Pits- 

9.  Retracing  lost  lines.  *7-    Where   mounds    and    pits    are 
10.    To    run   out   old    lines    where  destroyed. 

none  of  the  original  monu-      l8-    Caution. 

ments  can  be  found.  IO-    What  this  work  intended  to  be. 

§  i.  Generally. — Speaking  generally  the  term  surveying 
or  survey  is  applied  in  various  ways,  as  will  be  evident  by  an 
examination  of  any  good  dictionary  or  encyclopedia.  In  this 
work,  however,  these  terms  apply  to  land  surveying  only,  and 
we  shall  seek  to  give  to  the  professions  (those  of  surveying 
and  attorneys)  a  work  which  will  furnish  them  easy  access  to 
the  laws  and  rules  laid  down  by  the  courts  and  the  land  de- 
partment of  the  government  with  reference  to  the  survey  and 
subdivision  of  lands.  It  is  of  special  importance  that  these 
professions  become  familiar  with  the  instructions  given  out 
by  the  government  to  the  surveyor-general  and  his  deputies  to 

i 


§    I  SURVEYING    AND   BOUNDARIES  2 

be  followed  in  the  execution  of  a  particular  survey.  Likewise 
they  should  become  familiar  with  the  decisions  of  the  courts 
on  various  subjects  closely  related  to  and  inseparably  connected 
with  the  survey  of  land. 

The  professions  should  bear  in  mind  that  original  surveys 
in  some  states  were  executed  by  the  surveyor-general  under 
special  instructions  from  the  commissioner  of  the  general  land 
office.  In  retracing  the  lines  of  such  surveys  such  special 
instructions  should  be  carefully  examined  by  the  surveyor. 

It  is  not  intended  that  this  work  shall  be  a  work  on  survey- 
ing but  the  need  felt  by  surveyors  and  attorneys  of  a  general 
work  on  the  law  of  surveying,  containing  citations  of  deci- 
sions touching  that  branch  of  science  and  subjects  connected 
more  or  less  therewith  has  prompted  the  author  to  undertake 
the  task. 

§  2.  History. — "As  the  earliest  records  of  man  refer  to 
skilled  measurements  and  calculations,  it  is  impossible  to 
assign  the  birth  of  the  science  of  surveying  to  any  particular 
year  or  country/'  says  the  Encyclopedia  Americana.  And  the 
Encyclopedia  Britannica  affirms,  "The  first  rude  attempt  at 
the  representation  of  natural  and  artificial  features  on  a 
ground  plan  based  on  actual  measurements  of  which  any  record 
is  attainable  were  those  of  the  Romans,  who  certainly  made 
use  of  an  instrument  not  unlike  the  plane  table  for  determin- 
ing the  alignment  of  their  road." 

It  seems  quite  well  established  that  the  Chinese,  at  an  early 
date,  and  the  Egyptians,  long  before  Christ's  time,  practiced 
the  art  of  surveying.  In  the  latter  instance  it  was  necessary 
in  order  to  retrace  the  boundary  lines  of  tracts  inundated  by 
the  annual  overflow  of  the  Nile.  By  such  annual  overflow 
all  traces  of  boundary  lines  were  obliterated  and  it  required  a 
high  degree  of  skill  and  the  application  of  modern  rules  for 
the  retracing  of  such  lines  and  the  replacing  of  the  original 
comers  at  the  places  where  they  were  planted. 


3  LAND   SURVEYING  §  2 

The  first  public  surveys  in  the  United  States  were  made 
under  an  ordinance  passed  by  the  Continental  Congress  dated 
May  20,  1785,  and  provided  that  the  townships  should  be  six 
miles  square  laid  out  into  ranges,  extending  northward  from 
the  Ohio  river,  the  townships  being  numbered  from  south  to 
north,  and  the  ranges  from  east  to  west.  The  region  embraced 
under  this  law  forms  a  part  of  the  State  of  Ohio  and  is  usually 
styled,  "The  Seven  Ranges."  The  exterior  lines  of  the  town- 
ships only  were  surveyed,  but  the  plats  were  made  showing 
sections  of  one  mile  square.  Mile  corners  were  established 
on  the  township  lines.  The  sections  were  numbered  from  one 
to  thirty-six,  commencing  with  number  one  in  the  southeast 
corner  of  the  township  and  closing  with  number  thirty-six  in 
the  northwest  corner  thereof.  By  this  method  number  six 
was  in  the  northeast  corner  and  number  seven  west  of  and 
adjacent  to  number  one.  This  act  was  amended  May  18, 
1796,  and  provided,  among  other  things,  that  "the  sections 
should  be  numbered,  respectively,  beginning  with  number  one 
in  the  northeast  section  and  proceeding  west  and  east  alter- 
nately, through  the  township,  with  progressive  numbers  till 
the  thirty-sixth  be  completed."  This  method  has  been  fol- 
lowed since  that  time.  The  act  has  been  amended  several 
times. 

In  making  a  survey  of  a  state  there  is  established  a  principal 
(true)  meridian,  and  approximately  at  right  angles  thereto  a 
base  line.  This  line  conforms  to  a  parallel  of  latitude.  It  is 
established  astronomically.  Thirty-two  sets  of  base  lines  and 
thirty-four  of  meridians  have  been  established  to  the  present 
time.1  Standard  parallels  or  correction  lines  are  established 
every  twenty-four  miles,  north  and  south  of  the  base  line. 
Guide  meridians,  conforming  to  true  meridians,  are  established 
at  intervals  of  twenty-four  miles  along  standard  parallels,  and 
run  due  north  and  south  to  the  intersection  of  the  next  stand - 

Manual   (1919)   §  141. 


§    3  SURVEYING   AND  BOUNDARIES  4 

ard  parallel.  The  rectangles  so  formed  are  subdivided  into 
sixteen  townships. 

§  3.  Metes  and  bounds. — A  survey  of  a  tract  by  metes  and 
bounds  is  the  oldest  known  manner  of  describing  land  and  is 
the  outgrowth  of  the  art  of  surveying  as  practiced  in  olden 
times.  It  consists  of  running  out  tracts  of  land  by  courses  and 
distances  and  planting  monuments  at  the  several  corners  or 
angles.  The  planting  of  permanent  monuments  at  each  angle 
is  of  paramount  importance.  It  will  be  readily  seen  that  the 
description  of  property  by  metes  and  bounds  means  little  to 
the  layman,  is  difficult  and  liable  to  error.  For  this  reason, 
doubtless,  surveyors  inaugurated  the  rectangular  system, 
which  is  in  force  largely  in  the  United  States,  west  of  Pennsyl- 
vania, and  in  western  Canada. 

Owing  to  the  variation  of  the  magnetic  needle,  the  stretch- 
ing of  chains  and  tapes  used  in  making  surveys,  the  condition 
of  the  weather,  and  the  difference  in  chainmen,  it  is  exceed- 
ingly difficult  to  retrace  obliterated  or  lost  lines  of  such  boun- 
daries unless  at  least  one  of  the  lines  can  be  identified.  If  the 
surveyor  can  find  one  of  the  sides  of  the  tract,  he  can  adjust 
his  instrument  and  chain  or  tape  to  correspond  with  those  used 
in  the  prior  survey,  or  he  can  locate  the  other  lines  and  corners 
by  proportional  measurements.  This  subject  will  be  consid- 
ered in  a  later  chapter  of  the  work. 

§  4.  The  rectangular  system. — The  experience  of  man- 
kind with  irregular  tracts  and  surveys  by  metes  and  bounds, 
with  complicated  descriptions  in  deeds,  and  with  the  difficulty 
of  retracing  the  lines  under  such  circumstances,  brought  about 
the  more  simple  and  accurate  method  of  surveying  by  the 
rectangular  system,  referred  to  in  section  three.  By  this  sys- 
tem any  tract  of  land  can  readily,  easily  and  briefly  be 
described  and  distinguished  from  all  other  tracts.  Further- 
more lost  or  obliterated  lines  and  corners  can  be  retraced 
much  easier  and  more  satisfactorily  than  under  the  system  of 
metes  and  bounds.  The  professions  will  not  infer,  however. 


5  LAND  SURVEYING  §  7 

that  this  is  always  an  easy  job.  It  is  frequently  exceedingly 
difficult. 

§  5.  Fixed  monuments. — We  can  not  impress  on  the  sur- 
veyor too  strongly  the  necessity  of  planting  at  each  corner 
established  by  him,  permanent  monuments  for  future  reference 
and  from  which  future  surveys  may  be  made.  If  possible 
these  should  be  of  stone  or  iron,  set  firmly  in  the  soil.  In  a 
timbered  country  at  least  two  witness  trees  should  be  estab- 
lished at  each  corner.  These  should  be  properly  marked  and 
noted  by  the  surveyor  in  the  minutes  of  the  survey.  If  there 
is  no  timber  in  the  immediate  vicinity,  pits  should  be  dug 
and  mounds  thrown  up  or  references  should  be  made  to  other 
natural  features,  such  as  hills,  ridges,  creeks,  etc.  This  will 
enable  future  surveyors  to  find  the  original  corner. 

§  6.  Courses. — Bouvier,  in  his  law  dictionary  defines  a 
course  to  be:  "The  direction  of  a  line  with  reference  to  a 
meridian."  For  instance,  a  course  of  north  30  degrees  west 
means  a  bearing  of  30  degrees  to  the  west  of  a  true  north  and 
south  line.  If  a  course  be  run  with  reference  to  the  needle, 
the  instrument  must  first  be  adjusted  with  reference  to  the 
magnetic  variation  of  the  needle,  at  that  place,  from  a  true 
north  and  south  line.  It  would  be  advisable  for  the  surveyor 
to  establish  astronomically  such  a  line  and  frequently  adjust 
his  instrument  with  reference  thereto.  By  all  means  this 
should  be  done  in  original  surveys  and  monuments  planted, 
fixing  the  location  of  such  line,  and  reference  made  in  the 
notes  thereto.  Better  still  to  use  the  solar  compass.  In  fact 
the  rules  of  the  land  department  now  require  that  all  public 
surveys  be  executed  with  the  solar  compass.2 

§  7.  Distances.— The  distance  on  a  line  measured  by  the 
original  surveyor  is  conclusively  presumed  to  be  correct.3 
This,  however,  is  seldom  the  case.  Original  surveys  are  fre- 
quently inaccurate  and  lines  overrun  or  fall  short  of  the  true 

2Manual    (1919)    §    40;    Manual         3Post  ch.  XV ;  Mason  v.  Braught, 
(1902)   §  32.  33  S.  Dak.  559,  146  N.  W.  687. 


7 

Ydistan 


SURVEYING    AND   BOUNDARIES 


distance.  In  retracing  such  lines  the  surveyor  must  work  on 
the  theory  that  the  error  is  his  and  not  in  the  original  work. 
He  will  apportion  the  lines  run  by  him  according  to  the  former 
survey.  If  he  can  identify  the  two  ends  of  a  line,  as  origi- 
nally fixed,  he  can  apportion  the  remainder  of  his  work  ac- 
cordingly and  can,  with  reasonable  accuracy,  locate  the  old 
lines  and  corners. 

§  8.  Courses  and  distances  yield  to  fixed  monuments. — 
The  principle,  that  courses  and  distances  yield  to  fixed  monu- 
ments, applies  to  all  surveys,  ancient  and  modern.  Monu- 
ments are  either  natural  or  artificial.  Natural,  such  as  a  tree, 
hill,  ledge,  creek,  lake,  pond,  or  other  object.  Artificial,  such 
as  a  post,  mound,  pit,  canal,  fence,  wall  or  the  like.  Natural 
monuments  are  of  a  higher  order  than  artificial  and  take  pre- 
cedence of  the  latter.  The  law  as  to  courses,  distances  and 
monuments  will  be  fully  digested  and  citations  made  later.4 

§  9.  Retracing  lost  lines. — The  surveyor  will  have  much 
difficulty  in  this  branch  of  the  work.  If  one  fixed  monument 
can  be  found  at  any  corner  of  the  tract  to  be  run,  start  from 
that  point.  Adjust  the  transit  by  allowing  for  corrections  in 
the  difference  in  the  magnetic  variation  of  the  two  surveys. 
Lay  off  the  courses  from  that  monument  and  measure  the 
required  distance  to  the  next  corner.  At  this  point  search 
for  stake  or  monument  by  carefully  shaving  off  the  earth 
where  the  monument  or  stake  is  thought  to  be.  If  the  monu- 
ment be  found  then  adjust  the  transit  to  correspond  with  the 
line  between  the  two  known  points,  and  accurately  measure  the 
distance  between  those  points.  Then  adjust  the  chain  or 
tape  to  correspond  with  the  known  line.  Using  the  known 
line  as  a  base,  run  out  the  several  sides  of  the  tract  by  courses 
and  distances  given  in  the  description.  Or  instead  of  adjust- 

*Post  ch.  XV;  Russell  v.  M.  L. 
Grant  Co.,  158  U.  S.  253,  39  L.  ed. 
971,  15  Sup.  Ct.  827. 


7  LAND  SURVEYING  §    IO 

ing  the  chain  or  tape  the  surveyor  may  establish  the  several 
sides  by  proportional  measurements.  Search  for  remaining 
monuments  in  like  manner.  Find  as  many  of  the  original 
monuments  as  possible  and  re-establish  others  by  proportional 
measurements  and  corrections.  The  reader  is  referred  to  a 
further  consideration  of  the  subject.5 

§  10.  To  run  out  old  lines  where  none  of  the  original  mon- 
uments can  be  found. — The  surveyor  will  find  great  difficulty 
in  running  out  old  lines  in  cases  where  he  may  have  to  retrace 
the  boundaries  of  a  field  described  by  metes  and  bounds,  none 
of  which  lines,  apparently,  can  be  found.  We  will  assume 
that  the  surveyor,  after  a  thorough  search,  is  able  to  find  one 
of  the  original  corners  and  to  identify  it  with  certainty.  It 
will  be  readily  seen  that  if  he  does  not  know  the  date  of  the 
original  survey  and  the  rate  of  variation  used  in  that  survey, 
the  line,  as  originally  located,  can  not  be  found  with  exactness. 
True,  the  field  will  be  of  the  same  general  shape  and  will  begin 
and  close  at  the  same  point  and  its  sides  will  be  of  the  same 
number  and  of  like  distances. 

The  surveyor  will  first  ascertain  approximately  when  the 
survey  was  made,  and,  if  possible,  the  variation  of  the  needle 
used  in  such  survey.  If  he  can  establish  these  points  he  can 
proceed  to  trace  the  lines  of  the  field,  having  first  adjusted 
his  own  instrument  by  the  use  of  tables  of  changes  in  varia- 
tions from  year  to  year  to  be  found  in  any  work  on  surveying. 
Still  his  troubles  are  not  yet  over.  He  will  likely  find  that  the 
chain  or  tape  used  in  the  former  survey  does  not  correspond 
with  his  own.  It  is  more  than  likely  that  such  chain  or  tape  will 
be  too  long  or  too  short,  and  hence  that  the  measurements  will 
not  correspond.  Moreover,  the  original  survey  may  have 
been  full  of  errors  in  other  ways,  such  as  carelessness  in  meas- 
uring or  inaccuracy  in  turning  off  angles  and  running  courses. 
Still  that  survey  is  conclusively  presumed  to  be  correct  and 

§  383. 


§   IO  SURVEYING  AND  BOUNDARIES  8 

the  surveyor  to  follow  must  retrace  the  old  lines.  Owing  to 
the  difficulty  in  retracing  old  lines,  many  disputes  arise  be- 
tween adjacent  land  owners  and  juries,  and  judges  are  kept 
busy  deciding  from  the  evidence  of  conflicting  surveys  where 
the  true  line  should  be.  We  are  not  at  this  time  touching  on 
the  rights  of  either  party  to  maintain  the  line  as  per  occupa- 
tion and  adverse  possession. 

The  surveyor  will  carefully  examine  the  surroundings  and 
get  such  points  to  aid  him  as  possible.  Old  fences  may  be 
and  should  be  consulted.  Ridges  caused  by  the  land  being 
worked  by  adjoining  owners  for  many  years,  or  hedges  or 
rows  of  trees  growing  in  the  immediate  vicinity  may  help 
wonderfully  to  solve  the  difficulty.  Piles  of  stones  known  to 
have  been  in  the  same  place  for  many  years  along  an  old 
hedge  or  fence  supposed  to  have  been  one  of  the  lines  of  the 
old  field  may  be  helpful.  He  should  gather  evidence  from 
old  residents  as  to  location  of  ancient  fences,  etc.  In  this 
way  the  surveyor  may  be  able  to  retrace  one  of  the  sides  of 
the  tract,  and  by  careful  search,  find  a  trace  of  a  monument 
or  a  post  marking  another  corner.  He  can  then  re-adjust  his 
instrument  and  his  chain  or  tape  to  correspond  with  those  of 
the  former  surveyor,  and  can  then  proceed  with  reasonable 
certainty,  or  he  may  establish  courses  by  proportional  measure- 
ments. He  should  make  further  searches  for  monuments  or 
posts  to  original  corners,  so  as  to  confirm  his  work  to  a  rea- 
sonable certainty.  Most  surveyors  fail  in  making  a  thorough 
search.6 

§  II.  When  no  original  monument  can  be  found. — If  a 
field  bounded  by  metes  and  bounds,  where  none  of  the  original 
monuments  can  be  found,  is  required  to  be  surveyed  and  the 
old  lines  retraced  and  reestablished  the  surveyor  has  a  real 
problem.  At  best  his  work  will  be  unsatisfactory.  He  will 
first  exhaust  all  possible  efforts  to  find  some  trace  of  at  least 

6Stadin  v.  Helin,  76  Minn.  496,  79 
N.  W.  537,  602. 


9  LAND   SURVEYING  §    12 

one  original  monument  by  carefully  digging  over  the  ground 
in  the  vicinity  where  such  corner  is  thought  to  be.  He  should 
consult  old  residents  who,  at  one  time,  knew  where  the  corner 
was  said  to  be.  He  should  seek  to  learn  all  surrounding  cir- 
cumstances as  to  the  corners  and  boundaries  of  the  tract 
sought  to  be  surveyed.  He  should  rely  on  courses  and  dis-< 
tances  only  when  fixed  monuments  can  not  be  found  or  can 
not  be  relocated  with  reasonable  certainty  by  a  reference  to 
surroundings  or  by  a  resort  to  evidence  of  old  residents,  or 
by  declarations  of  persons  long  since  deceased,  who  were 
likely  to  have  known  where  the  original  corners  were  located 
and  were  in  a  position  to  have  so  known,  and  which  declara- 
tions were  made  before  a  controversy  arose  over  the  corners 
or  lines  and  were  against  the  interest  of  the  party  making  the 
declarations,  or  that  such  party  had  no  interest  in  the  matter 
in  controversy.7 

If  it  can  be  shown  that  two  old  fences  which  meet  were 
originally  built  to  the  corner  in  question  and  have  since  re- 
mained undisturbed,  the  surveyor  would  be  justified  in  taking 
the  point  of  intersection  of  the  fences  as  the  location  of  the 
true  corner.  In  fact  he  can  not  disregard  such  evidence  with- 
out doing  violence  to  the  rules  laid  down  by  the  court.8  The 
matter  of  retracing  old  lines  and  re-establishing  lost  or  obliter- 
ated corners  will  be  fully  discussed  and  the  authorities  digested 
later.9 

§  12.  Instruments  and  chains  or  tapes. — In  these  obser- 
vations no  attempt  has  been  made  to  advise  the  surveyor  of 
the  necessity  of  adjusting  his  instrument  with  reference  to 
the  changed  variations  of  the  magnetic  needle,  or  to  carefully 
test  his  chain,  except  in  a  general  way.  These  requirements 
are  fundamental.  The  surveyor  should  adjust  and  test  his 
instruments  and  chains  or  tapes  frequently,  and  by  all  possible 

7Gillette    Indirect    and    Collateral         8Wunnicke  v.  Dederich,  160  Wis. 
Evidence,  171.  462,  152  N.  W.  139. 

9Post  ch.  XV. 


§    13  SURVEYING   AND   BOUNDARIES  IO 

precautions  fortify  himself  in  his  every  act,  so  that  if  he  be 
called  into  court  to  sustain  his  survey  he  can  establish  the  cor- 
rectness of  his  work,  within  the  meaning  of  the  law,  to  a 
reasonable  certainty.  Proportional  measurements  and  mean 
courses,  where  they  can  be  used,  are  generally  regarded  as 
more  accurate  than  adjusting  chains,  tapes  and  instruments, 
and  should  be  followed.  He  should  take  nothing  for  granted 
but  prove  his  every  step.  He  will  find  opportunity  to  use  his 
best  judgment,  founded  on  common  sense,  and  bolstered  up 
by  natural  conditions  and  such  other  evidence  as  he  may 
gather. 

v-§  13.  Old  surveys  presumed  correct. — No  matter  how 
inaccurate  the  original  survey  may  have  been,  it  will  be  con- 
clusively presumed  to  be  correct,  and  that  if  there  be  error  in 
the  measurements  or  otherwise,  such  error  is  the  error  of  the 
recent  surveyor.  Hence  the  surveyor  will,  at  all  times,  keep  in 
his  mind  this  presumption  and  conform  his  acts  thereto.  This 
subject  will  be  treated  at  length  later  and  cases  cited.10 

§  14.  Witness  trees.— In  locating  corners  established  by 
government  surveyors,  in  wooded  countries,  the  surveyor  will 
satisfy  himself  of  the  location  and  identity  of  the  witness  trees 
or  some  of  them.  If  he  can  find  one  or  more  of  such  trees  he 
can  generally  establish  the  required  corner  accurately.  In 
the  event  such  trees  have  been  removed  the  surveyor  will 
make  search  for  the  stumps  or  the  remains  thereof.  If  he 
can  find  a  stump,  which  he  is  satisfied  is  a  part  of  the  original 
tree,  he  can  then  locate  the  corner  with  reasonable  certainty. 
If  he  can  find  neither  tree  nor  stump  he  should  look  for  a  de- 
pression or  some  mark  where  the  tree  is  supposed  to  have 
once  stood.  If  from  a  surface  examination  he  believes  the 
tree  to  have  been  located  in  a  certain  spot,  he  should  carefully 
dig  over  the  ground  in  the  vicinity,  making  a  careful  search 
for  roots  or  rotted  parts  thereof  or  discoloration  in  the  soil. 
"Post  ch.  XV. 


II  LAND   SURVEYING  §    15 

By  these  means  the  surveyor  will  frequently  be  able  to  de- 
termine the  exact  location  of  the  destroyed  witness  tree  and 
thus  locate  the  corner.  A  corner  so  located  should  be  tested 
in  order  to  determine  the  accuracy  of  the  work  done.  The 
surveyor  will  lay  off  the  courses  and  measure  the  distances 
and  try  and  locate  the  position  of  the  other  witness  trees,  if  any. 
He  should  make  a  like  search  for  stumps,  roots  or  parts  of  such 
tree  or  a  discoloration  of  the  ground.  He  should  by  all  means 
search  for  some  remains  of  the  old  corner  by  digging  over  the 
soil  as  heretofore  suggested.  By  so  doing  he  can  prove  his 
own  work.  These  little  precautions  will  frequently  bring 
success  for  the  client  and  enable  the  surveyor  to  demonstrate 
the  accuracy  of  his  work  and  his  theory.  After  all,  a  case  in 
court  is  tried  on  the  evidence  and  it  is  the  little  things  which 
establish  where  the  truth  lies. 

§  15.  Corners. — The  surveyor  will  often  find  all  stakes, 
posts,  and  monuments  gone  and  all  traces  of  witness  trees 
obliterated.  He  will  be  unable  to  find  any  natural  or  artificial 
object  to  aid  him  in  determining  the  approximate  location  of 
the  corner  sought.  In  such  cases  he  should  locate  such  corner 
by  proportional  measurements  and  the  running  of  lines  from 
the  nearest  known  corners  according  to  the  rules  laid  down 
by  the  United  States  land  office  and  fully  digested  in  this 
work.11  After  he  has  so  located  such  corner  he  should  set 
about  to  prove  his  work.  He  will  carefully  shave  off  the 
surface  of  the  ground  where  he  has  located  such  corner  and 
look  for  a  post,  or  the  remains  of  one,  or  a  discoloration  of 
the  soil  at  that  point.  He  should  enlarge  the  circle  of  ground 
over  which  he  is  digging  and  gradually  dig  deeper,  keeping 
careful  watch  to  detect  the  least  evidence  of  rotted  wood  or 
discoloration  of  the  soil.  This  will  often  enable  him  to  locate 
the  corner  correctly,  and  demonstrate  his  work  and  so  fortify 
himself  with  collateral  facts  and  circumstances  so  as  to  be  able 

nPost  ch.  XV. 


§   l6  SURVEYING   AND   BOUNDARIES  12 

to  convince  the  jury  or  the  court  of  the  accuracy  of  his  work 
and  the  correct  location  of  the  corner. 

§  1 6.  Corners  marked  by  mounds  and  pits. — In  a  prairie 
country  where  corners  were  marked  by  post  and  pits  and 
mounds,  the  surveyor  will  have  little  difficulty  in  locating  the 
corner  where  surface  conditions  have  not  been  changed  or 
disturbed  at  the  point.  In  such  case,  if  the  post  be  not  found, 
the  surveyor  will  take  a  shovel  or  spade  and  carefully  shave 
off  the  top  of  the  ground  at  the  place  indicated  by  the  mounds 
and  pit  for  the  location  of  the  corner.  He  should  keep  a 
sharp  look  out  for  the  remains  of  the  stake,  if  wood,  and  for 
any  discoloration  of  the  soil  which  may  indicate  a  stake  once 
stood  at  the  point.  Very  often  the  surveyor  will  detect  a 
slight  discoloration  of  the  soil  of  the  size  and  shape  of  the  post 
used  at  such  corner.  On  making  this  discovery  he  will  con- 
tinue to  dig  deeper,  keeping  careful  watch  and  tracing  the  dis- 
coloration downward  until  he  satisfies  himself  he  has  found 
the  obliterated  corner.  He  should  then  test  his  work  by  all 
known  means,  by  proportional  measurements  to  other  known 
corners,  or  natural  objects,  such  as  line-trees,  streams,  ponds, 
lakes,  ledges,  or  marshes.  These  tests  are  for  the  purpose  of 
proving  his  work  only,  and  as  a  demonstration  before  a  court 
or  jury  of  the  accuracy  of  his  work.  He  should  bear  in  mind 
that  fixed  monuments,  when  identified,  govern  and  that 
courses  and  distances  must  yield  thereto.  The  surveyor  must 
exercise  his  best  judgment  and  secure  such  additional  evi- 
dence of  the  accuracy  of  his  work  as  the  surrounding  circum- 
stances in  each  case  may  suggest. 

It  will  readily  occur  to  the  attorney,  who  may  have  for 
trial  an  issue  involving  lost  corners,  that  he  should  fortify 
himself  thoroughly  by  all  manner  of  tests  to  establish  the 
correctness  of  his  theory  of  relocating  the  lost  corner  at  the 
particular  point,  at  which  his  surveyor  has  located  such  corner 
or  corners.  The  surveyor  should  exhaust  all  means  possible 


13  LAND  SURVEYING  §   17 

before  giving  up  finding  the  location  of  the  original  post. 
That  point  alone  is  certain  to  be  right.  The  location  by 
measurement  is  only  approximately  so  and  should  be  resorted 
to  only  where  all  other  means  have  failed.  In  other  words 
look  for  the  tracks  of  the  original  surveyor. 

§  17.  Where  mounds  and  pits  are  destroyed. — Frequently 
the  mounds  and  pits  will  have  been  destroyed  and  there  will 
be  no  sure  indication  of  approximately  where  the  original 
corner  was  located.  Perchance  it  may  be  in  a  highway  which 
has  been  worked  and  turn-piked.  If  there  are  old  fences  in 
the  immediate  vicinity,  which  were  built  with  reference  to  that 
corner,  the  surveyor  will  have  a  starter  from  which  he  should 
set  to  work  to  find  some  of  the  original  monuments,  marking 
such  corner.  He  should  make  a  careful  examination  of  sur- 
rounding natural  features  and  look  for  some  reference  thereto 
in  the  notes  of  the  survey.  He  will  find  ample  opportunity  to 
exercise  his  judgment  and  demonstrate  his  originality.  He 
should  take  measurements  from  line-trees,  streams,  lakes,  or 
ponds  and  from  the  nearest  known  corners,  proportionately 
corrected,  as  per  original  measurements,  running  such  direct 
lines  as  may  be  necessary  or  suggest  themselves  to  his  judg- 
ment and  in  this  manner  locate  the  lost  corner.  A  full  dis- 
cussion of  the  manner  of  re-establishing  lost  corners  under  all 
circumstances  will  be  considered  later.12 

After  locating  the  lost  corner,  the  surveyor  should,  at  the 
point  so  located,  make  a  search  for  some  trace  of  the  post 
which  marked  the  corner  as  originally  established.  This  he 
can  do  in  the  manner  herein  indicated.  If  the  corner  be  in  a 
highway,  which  has  been  worked  and  turnpiked,  he  may  have 
to  do  a  good  deal  of  digging  before  reaching  the  surface  of 
the  soil  as  it  originally  lay.  He  should  use  the  same  care  in 
digging  as  heretofore  suggested,  keeping  a  careful  watch  for 
remains  of  the  original  marker  or  the  place  where  it  was 
planted. 

"Post  ch.  XV. 


§    1 8  SURVEYING   AND  BOUNDARIES  14 

In  this  manner  the  surveyor  will  frequently  find  some  trace 
of  the  post  which  marked  the  corner.  This  may  be  the  remains 
of  rotten  wood  or  a  discoloration  of  the  soil  where  the  post 
was  planted.  In  making  these  excavations  a  considerable 
space  should  be  dug  over,  so  as  not  to  miss  any  indications  of 
where  the  post  stood,  bearing  in  mind  that  the  original  meas- 
urements and  courses  may  have  been  full  of  errors.  When 
searching  for  posts  he  should  also  search  for  evidences  of 
where  the  mounds  and  pits  were  planted.  The  only  evidence 
of  these  which  he  will  find  in  a  place  like  the  one  under  con- 
sideration, very  likely,  is  a  slight  difference  in  the  color  of  the 
soil  where  the  pit  was  dug  or  the  mound  made. 

§  1 8.  Caution. — Should  the  original  corner,  now  obliter- 
ated, be  in  the  vicinity  of  old  fences,  buildings  or  other  struc- 
tures, where  posts  may  have  been  driven  into  the  ground,  the 
surveyor  will  proceed  with  caution  and  make  reasonably  cer- 
tain he  has  found  the  post  sought.  He  should  be  prepared  to 
demonstrate,  by  other  proof,  that  he  has  found  the  original 
post  or  monument,  or  the  place  where  it  stood.  Extra  precau- 
tion should  be  taken  in  such  instances  in  order  that  the  sur- 
veyor may  be  practically  certain  he  has  found  the  location  of 
the  original  monument  or  marker.  Unless  he  is  reasonably 
certain  of  this  he  will  re-establish  the  lost  corner  according  to 
the  rules  laid  down  elsewhere  in  this  work.13 

§  19.  What  this  work  intended  to  be. — It  is  not  intended 
that  this  work  shall  treat  of  the  elements  of  surveying.  It  will 
be  assumed  that  the  reader  is  either  a  trained  and  educated 
surveyor  or  lawyer.  The  author  will  seek  to  digest  the  law 
pertaining  to  land  surveying,  with  special  reference  to  the 
survey  of  the  public  lands  and  the  subdivision  thereof  for 
private  individuals.  He  will  treat  extensively  of  the  law 
pertaining  to  the  retracing  of  old  lines  and  re-establishing  of 
lost  or  obliterated  corners,  citing  the  decisions  of  the  courts 

"Post  ch.  XV. 


15  LAND   SURVEYING  §    1 9 

on  the  various  points  and  quoting  at  length  from  the  statutes 
of  the  United  States  and  from  the  rules  and  instructions  laid 
down  by  the  surveyor-general  to  his  deputies. 

The  work  is  intended  as  a  guide  to  surveyors  throughout  the 
country  in  the  subdivision  of  lands  of  private  owners,  fully 
informing  them  of  the  laws  as  construed  by  the  courts  and 
setting  forth  the  rules  prescribed  by  the  land  department  of 
the  government. 

Of  equal  value  will  the  work  be  to  the  lawyer  who  frequently 
finds  use  for  such  work  and  has  neither  the  time  nor  the  fa- 
cilities for  the  examination  of  the  laws,  rules  and  decisions  of 
the  courts  with  reference  to  the  subject  matter. 


CHAPTER  II 

THE  SURVEY  OF  PUBLIC  LANDS 

Sec.  Sec. 

20.  Generally.  36.    General  land  office  established. 

21.  Meridian    lines.  37.     Sale  of  public  lands. 

22.  Parallels    of    latitude.  38.     Special    rules    for    survey    of 

23.  Base  line.  water  frontage. 

24.  Principal  meridian.  39.     Subdivision    of     sections    and 

25.  Townships.  quarter-sections. 

26.  Guide  meridians.  40.    Reorganization       of      general 

27.  Standard   parallels.  land  office. 

28.  Ranges.  41.    System     of     designating    cor- 

29.  Sections.  ners. 

30.  Sections,    how    numbered.  42.    Designations   of   corners    sub- 

31.  Originally  townships  were  dividing  sections. 

seven  miles  square.  43.    Material  of  monuments. 

32.  Reduction    of    size    of    town-   44.    The  contract  system  and  a  per- 

ship.  manent  corps. 

33.  Surveyor-general.  45.    General  rules  founded  on  con- 

34.  Subdividing  into  half-sections.  gressional   legislation. 
35-     Corners    and    quarter-lines. 

§  20.  Generally. — In  the  former  chapter  we  took  a  general 
view  of  the  subject,  defining  and  discussing  some  of  the  more 
important  terms  closely  associated  with  the  subject,  and  did 
not  confine  ourselves  to  a  discussion  of  the  rectangular  system 
of  surveys.  In  this  chapter  we  shall  deal  more  particularly 
with  that  system.  The  public  lands  of  the  United  States  are 
laid  out  and  divided  into  squares  whose  sides  run  north  and 
south  (so  to  speak)  and  east  and  west  and  are  approximately 
one  mile  on  each  side  and  contain  six  hundred  and  forty  acres 
"as  near  as  may  be."  It  will  be  readily  seen  that  these  tracts 
can  not  be  exactly  square  but  for  practical  purposes  are  so 

16 


17  THE  SURVEY  OF  PUBLIC  LANDS  §  22 

considered.  These  lines  are  run  with  reference  to  meridian 
lines  and  parallels  of  latitude.1 

It  must  not  be  supposed  that  the  original  thirteen  states  of 
the  Union  were  surveyed  under  the  present  rectangular  system. 
They  were  not.  However,  some  of  those  states  were  surveyed 
under  a  so-called  rectangular  system  but  differing  greatly  from 
the  system  later  established  by  the  Continental  Congress,  and 
differing  greatly  from  each  other.  It  was  quite  the  practice  in 
those  days  to  lay  off  a  given  territory  into  lots  of  three  hun- 
dred and  sixty  acres  each.2  What  we  shall  consider  in  this 
chapter  is  the  survey  of  the  public  lands  under  the  rectangular 
system  as  established  by  the  Continental  Congress  and  later 
amended  from  time  to  time. 

§  21.     Meridian  lines. — A  meridian  line  is  a  line  run  due 

north  and  south  from  a  fixed  point  on  a  base  line.  The  merid- 
ians are  established  at  intervals  of  exactly  six  miles  on  such 
base  line  and  on  the  standard  parallels  or  correction  lines. 
They  form  the  east  and  west  sides  of  a  township  and  are 
properly  called  the  range  lines.3  The  meridian  lines  are  run 
twenty-four  miles  or  the  length  of  four  townships  to  a  stand- 
ard parallel  either  north  or  south  of  the  base  line.4  Permanent 
corners  are  established  every  half  mile  on  the  meridians. 

§  22.  Parallels  of  latitude. — A  parallel  of  latitude  is  a  line 
running  east  and  west  from  a  fixed  point  on  a  principal  merid- 
ian. Parallels  are  established  at  exactly  six  miles  apart  on 
such  principal  meridian,  and  form  the  north  and  south  sides 
of  a  township  and  are  properly  called  the  township  lines. 
Such  lines  run  east  and  west  to  the  first  guide  meridian, 
twenty-four  miles.  In  theory  they  are  prolonged  to  the  extent 
of  the  survey,  but  in  practice  they  do  not  always  continue  in  a 
direct  line. 

1U.    S.   Rev.   Stat   §2396;    Comp.       3Post  §  28. 
Stat.  §  4804;  Post  ch.  XXVI.  *Post  §  27. 

2Post  ch.   XXVI. 


§   23 


SURVEYING  AND  BOUNDARIES 


18 


§  23.  Base  line. — The  base  line  is  a  line  running  east  and 
west  from  a  given  point  on  the  principal  meridian,  approxi- 
mately at  right  angles  thereto,  and  from  which  a  survey  of  a 
considerable  area  of  the  public  land  is  made,  and  from  which 
the  townships  either  north  or  south  are  numbered.  In  fact, 
this  line  is,  what  it  purports  to  be,  a  base  line,  and  the  entire 
survey  of  that  portion  of  the  public  domain  has  reference 
thereto  and  is  based  thereon.  Fig.  i. 


Fiq  1 

§  24.     Principal  meridian. — The  principal  meridian  is  a  true 
north  and  south  line  run  from  a  given  point  on  the  base  line 


19  THE  SURVEY  OF  PUBLIC  LANDS  §  26 

through  a  certain  tract  of  country  to  be  surveyed.  The 
entire  survey  of  such  tract  is  made  with  reference  to  the 
principal  meridian  and  base  line.  The  ranges,  either  east  or 
west,  are  numbered  from  the  principal  meridian.  It  will  be 
seen  that  by  numbering  or  naming  the  principal  meridian, 
and  by  fixing  the  base  line,  and  numbering  the  sections,  town- 
ships, and  ranges,  any  tract  of  land  in  the  United  States  can 
be  described  with  certainty  and  readily  distinguished  from 
all  other  tracts.  The  principal  meridians,  base  lines,  guide 
meridians  and  standard  parallels  are  run  astronomically.  In 
fact  all  public  surveys  under  the  direction  of  the  surveyor- 
general  are  now  required  to  be  run  with  a  solar  compass  and 
the  surveyor  is  not  permitted  to  rely  on  the  needle.5  It  was 
not  thus  with  the  older  surveys,  and,  as  a  result,  there  were 
many  errors.  Fig  I. 

§  25.  Townships. — A  township  is  a  tract  of  land  contained 
by  running  the  meridians  and  parallels  six  miles  apart,  whose 
sides  run  north  and  south  (so  to  speak)  and  east  and  west, 
and  is  approximately  square  and  contains  thirty-six  square 
miles  or  twenty-three  thousand  and  forty  acres  "as  near  as 
may  be."  From  what  has  heretofore  been  said  it  will  be  seen 
that  it  is  a  mathematical  impossibility  to  run  lines  in  the  man- 
ner required  for  township  and  range  lines  and  make  the  tract 
square  or  contain  the  required  area.  Hence  Congress  provided 
that  a  township  should  contain  twenty-three  thousand  and 
forty  acres  "as  near  as  may  be."  As  a  matter  of  fact  all 
townships  are  narrower  across  the  north  side  than  along  the 
south  side.  The  constant  convergence  of  the  meridians,  as 
they  run  north,  causes  this.  Figs,  i,  2  and  3.* 

§  26.  Guide  meridians. — A  guide  meridian  is  a  true  north 
and  south  line  run  from  points  on  the  base  line  or  standard 
parallels,  either  east  or  west  of  the  principal  meridian,  at 

5Manual,    (1919)    §   40;   Manual       «U.  S.  Rev.  Stat.  §  2395;  U.  S. 
(1902)    §§  32,  291.  Com.  Stat.  §  4803. 


§27 


SURVEYING   AND  BOUNDARIES 


20 


N 


6 

5 

4 

3 

2 

I 

7 

6 

9 

10 

II 

12 

13 

17 

16 

15 

14 

13 

19 

20 

21 

ZZ 

23 

24 

30 

Z9 

26 

2.7 

26 

25 

31 

32 

33 

34 

35 

36 

Fiq.2 

intervals  of  twenty-four  miles  each.  The  guide  meridians 
and  principal  meridian,  with  the  base  line  or  standard  parallels, 
bound  tracts  of  land  twenty-four  miles  on  the  east,  west  and 
south  sides,  and  twenty-four  miles  on  the  north  side  less  the 
amount  lost  by  the  convergence  of  the  meridians.  They  serve 
as  guides  to  enable  the  surveyor  to  conform  his  north  and 
south  lines  more  nearly  to  the  true  meridian.  Fig.  i. 

§  27.    Standard  parallels.— Standard  parallels  or  correction 

lines,  as  they  are  usually  termed,  are  lines  run  due  east  and 
west  parallel  to  the  base  line  and  twenty-four  miles  therefrom. 
Fig.  i.  In  fact,  such  standard  parallels  are  run  twenty-four 


21  THE  SURVEY  OF  PUBLIC  LANDS  §  27 

miles  apart  and  form  bases  for  the  townships  lying  north  of 
such  lines.  On  each  of  these  correction  lines  a  new  set 
corners  are  established  for  the  township  and  sections  lying 
north  thereof.  To  that  end  the  deputy-surveyor-general,  be- 
ginning at  the  intersection  of  the  principal  meridian  with  such 
standard  parallel,  measures  along  such  parallel  exactly  six 
miles  for  a  new  set  of  townships.  These  new  townships  are 
set  off  in  both  directions,  east  and  west,  of  the  principal  merid- 
ian, in  the  same  manner  on  such  parallel.  This  is  done  in 
order  to  make  the  necessary  corrections  to  compensate,  as  it 
were,  for  the  convergence  of  the  meridians.  Fig.  i.  It  will 
be  seen,  if  this  correction  is  not  made,  and  the  meridians  are 
extended  to  the  north  pole  they  will  meet.  Hence  such  merid- 
ians are  continually  approaching  each  other  as  they  run  north. 
The  northern  side  of  a  township,  north  of  the  equator,  is  always 
narrower  than  is  its  south  side.  Instead  of  forming  squares 
they  are  more  in  the  form  of  a  trapezoid,  whose  shortest  side"" 
is  on  the  north.  The  surveyor  can  readily  compute  the  differ- 
ence between  the  north  and  south  sides  in  length.  He  must 
know  the  latitude.  If  the  land  lies  between  46  and  47  degrees 
north  latitude  the  difference  in  length  between  the  north  and 
south  sides  of  a  township  is  practically  76  links,  i.  e.,  the  north 
side  is  that  much  shorter  than  the  south  side,  providing  the 
survey  was  accurately  made.  In  running  four  townships  the 
difference  would  be  about  3.04  chains.  Hence  it  will  be  seen 
that  the  corners  marking  the  closing  lines  of  a  township,  on  a 
standard  parallel,  can  not  be  the  same  as  the  new  set  of 
township  corners  for  townships  lying  north  by  approximately 
that  distance.  Thus  we  have,  what  all  surveyors  are  familiar 
with,  the  double  corners,  for  sections,  as  well  as  townships, 
on  these  correction  lines.  Fig.  3. 

Formerly  these  correction  lines  were  run  thirty,  forty-eight 
and  even  sixty  miles  apart,  instead  of  twenty-four  miles  as 
per  present  instructions.  This  must  be  taken  into  considera- 


§  27 


SURVEYING  AND  BOUNDARIES 


22 


b     Std 


dor 


Q) 


PcVallel 


FiqS 


tion  in  the  survey  of  lines  in  the  older  surveys,  as  well  as  many 
other  differences  which  will  be  found  in  old  surveys,  made 
under  instructions  laid  down  by  the  surveyor-general  at  the 


23  THE  SURVEY  OF  PUBLIC  LANDS  §  2Q 

time.  For  instance,  at  the  time  the  territory  of  Oregon  was 
surveyed,  we  find  the  following  instructions  sent  out  to  the 
deputy  surveyors :  "standard  parallels  (usually  called  "correc- 
tion lines)  are  established  at  stated  intervals  of  thirty  miles 
to  provide  or  counteract  the  error  that  otherwise  would 
result  from  the  convergence  of  meridians;  and  because  the 
public  surveys  have  to  be  governed  by  the  true  meridian, 
such  lines  serve  also  to  correct  errors  arising  from  inaccu- 
racies in  measurements.  Such  lines,  when  lying  north  of  the 
principal  base,  themselves  constitute  a  base  to  the  surveys  to 
the  north  of  them/'7  Referring  to  Fig.  3  double  corners  will 
be  found  on  the  standard  parallel  at  a,  a,  etc.,  and  at  b,  b,  etc. 
The  closing  corners  thereon,  a,  a,  a,  a,  and,  b,  b,  b,  b,  are  new 
corners  for  townships  lying  north.  The  latter  are  exactly  six 
miles  apart. 

§  28.  Ranges. — All  of  the  townships  situated  north  and 
south  of  each  other  are  designated  as  ranges.  They  are  num- 
bered from  the  principal  meridian,  east  and  west  on  the  base 
line.  They  are  read  "range  one  or  two  east  or  west,  etc.,"  as 
the  case  may  be.  The  townships  situated  east  and  west  of 
each  other  are  designated  as  townships,  in  describing  lands, 
and  are  numbered  from  the  base  line  north  and  south  on  the 
principal  meridian.  They  are  read,  "township  one  or  two,  etc., 
north  or  south,"  as  the  case  may  be.  Fig.  i. 

§  29.  Sections. — A  section  is  a  tract  of  land  one  mile  square 
and  containing  six  hundred  and  forty  acres  "as  near  as  may 
be."  It  will  be  evident  from  what  has  already  been  said  that 
such  a  tract  of  land  bounded  by  lines  running  north  and  south 
and  east  and  west  can  not  be  square,  though  it  is  supposed  to 
be  that  form.  The  same  may  be  said  of  a  tract  one  mile  each 
way  north  and  south  and  along  the  south  side,  even  where 

7Manual  for  Field  Operations 
(1851),  Carpenter's  Manual  for 
County  Surveyors,  §  85. 


§  3O  SURVEYING   AND   BOUNDARIES  24 

the  east  and  west  sides  are  run  parallel  to  the  east  side  of  the 
township,  as  the  sections  other  than  those  in  the  north  tier 
of  townships  bounded  on  the  north  by  a  correction  line  or 
base  line,  are  now  run.  As  we  have  seen  they  were  formerly 
run  by  running  the  east  and  west  sides  of  sections  due  north. 
But  nevertheless  if  the  survey  be  correctly  executed  every 
section  will  contain  less  than  six  hundred  and  forty  acres8. 

§  30.  Sections,  how  numbered. — There  are  thirty-six  sec- 
tions in  each  township,  containing  "as  near  as  may  be,"  twen- 
ty-three thousand  and  forty  acres.  These  sections  are  num- 
bered consecutively  beginning  with  number  one  in  the  north- 
east corner  of  the  township  and  counting  westerly  six  sec- 
tions on  the  north  side  thereof;  then  with  number  seven  south 
of  section  six  counting  back  to  the  east  side  of  the  township, 
and  so  on  back  and  forth  through  the  township  until  the  six 
rows  of  sections  with  six  in  each  row  are  run  off,  ending  in  the 
southeast  corner  of  the  township  with  number  thirty-six.  Fig. 
2.  In  the  subdivision  of  a  township  the  sections  are  not  run 
off  in  this  order.9  This  matter  will  be  considered  later.10 

In  the  first  surveys  made  under  the  act  of  1785,  the  sec- 
tions were  numbered  differently.  They  began  with  number 
one  in  the  southeast  corner  of  the  township  and  counted  north 
on  the  east  side  thereof.  This  brought  section  six  in  the  north- 
east corner  of  the  township.  Then  with  section  seven  west 
of  section  one  they  proceeded  north  in  the  same  manner  and 
closed  with  section  thirty-six  in  the  northwest  corner  of  the 
township.  The  north  side  of  the  township  contained  sections 
6,  12,  1 8,  24,  30  and  36.  Fig.  4. 

8Rev.  Stat.   §  2395,  Comp.  Stat.       9Manual   (1919)   §   181. 
8  4803.  10Post  ch.  VI. 


W 


THE  SURVEY  OF  PUBLIC  LANDS 

N 


§3i 


36 

30 

24 

18 

12 

6 

35 

29 

23 

17 

II 

5 

34 

26 

22 

16 

10 

4 

33 

27 

21 

15 

9 

3 

32 

26 

20 

14 

8 

2 

31 

25 

19 

13 

7 

1 

S 

Ficj,4 

§  31.    Originally  townships  were  seven  miles  square. — As 

originally  provided  by  the  Continental  Congress,  the  town- 
ships were  seven  miles  square  as  shown  by  the  act  of  April 
26,  1785,  which  required  the  surveyor  "to  divide  the  said  terri- 
tory into  townships  of  seven  miles  square,  by  lines  running  due 
north  and  south,  and  others  crossing  these  at  right  angles. 
*  *  *  The  plat  of  the  townships  respectively  shall  be  marked 
by  subdivisions  into  sections  of  one  mile  square,  or  six  hun- 
dred and  forty  acres,  in  the  same  direction  as  the  exterior 
lines,  and  numbered  from  i  to  49,  *  *  *  and  these  sec- 
tions shall  be  subdivided  into  lots  of  three  hundred  and  twenty 


§32 


SURVEYING   AND  BOUNDARIES 


26 


acres."  Fig.  5.  This  is  the  first  record,  it  is  said,  of  the 
use  of  the  terms  "township"  and  "section."  But  no  townships 
of  the  size  indicated  herein  were  ever  run,  it  is  said. 


;    it9 

*L 

35 

28 

2! 

14 

7 

! 
i    45 

i 

41 

34 

27 

20 

13 

6 

: 

47 

40 

33 

26 

19 

ia 

5 

46 

39 

32 

25 

18 

rj 

4 

45 

38 

31 

24 

17 

JO 

3 

44 

37 

30 

23 

16 

$ 

Z 

43 

36 

29 

22 

15 

6 

1 

Rq5 

§  32.  Reduction  of  size  of  township. — On  May  3,  1785, 
this  act  was  amended  by  striking  out  the  words,  "seven  miles 
square,"  and  substituting  the  words,  "six  miles  square,"  in 
lieu  thereof.  The  Congress,  however,  failed  to  strike  out  the 
word,  "forty-nine,"  and  insert  the  word,  "thirty-six."  But 
it  later  amended  the  act  by  providing  for  the  townships  "6 
miles  square,  containing  thirty-six  sections,  of  one  mile  each." 


27  THE  SURVEY  OF  PUBLIC  LANDS  §  34 

The  first  public  surveys  were  made  under  this  act.  The  town- 
ships were  laid  out  into  ranges,  extending  northward  from 
the  Ohio  river,  and  were  numbered  from  south  to  north,  and 
the  ranges  from  east  to  west.  This  survey  formed  a  part  of 
the  state  of  Ohio  and  is  called  "The  Seven  Ranges."  In 
making  the  survey  only  exterior  boundaries  of  the  townships 
were  surveyed  but  the  plats  were  marked  showing  the  subdi- 
visions into  sections  of  one  mile  square.  Mile  corners  were 
established  on  the  township  lines.  The  sections  were  num- 
bered from  one  to  thirty-six,  commencing  with  number  one  in 
the  southeast  corner  of  the  township  and  running  from  south 
to  north  in  each  tier  to  number  thirty-six  in  the  northwest 
corner  of  the  township.  Fig.  4." 

§  33.  Surveyor-general. — The  appointment  of  a  surveyor- 
general  and  the  survey  of  the  lands  north  of  the  Ohio  river, 
and  above  the  mouth  of  the  Kentucky  river,  in  which  the  title 
of  the  Indian  tribes  had  been  extinguished  was  provided  for 
by  the  act  of  May  18,  1796.  Under  this  law  one-half  of  the 
townships  surveyed  were  subdivided  into  sections  "by  run- 
ning through  the  same,  each  way,  parallel  lines  at  the  end  of 
every  two  miles,  and  by  making  a  corner  on  each  of  said 
lines  at  the  end  of  every  mile."  It  further  provided  "that 
sections  shall  be  numbered,  respectively,  beginning  with  num- 
ber one  in  the  northeast  section  and  proceeding  west  and 
east  alternately,  through  the  township,  with  progressive  num- 
bers till  the  thirty-sixth  be  completed."  Fig.  2.12 

§  34.     Subdividing  into  half  sections.— By  act  of  Congress 

May  10,  1800,  it  was  provided  that  the  "townships  west  of 
the  Muskingum,  which  *  *  *  are  directed  to  be  sold  in 
quarter  townships,  to  be  subdivided  into  half-sections  of  three 
hundred  and  twenty  acres  each,  as  nearly  as  may  be,  by  run- 

11Manual    (1902)    §  2.  12Manual   (1902)   §  3. 


§35  SURVEYING  AND  BOUNDARIES  28 

ning  parallel  lines  through  the  same  from  east  to  west,  and 
from  south  to  north,  at  the  distance  of  one  mile  from  each 
other,  and  marking  corners,  at  the  distance  of  each  half  mile, 
on  the  lines  running  from  east  to  west,  and  at  the  distance  of 
each  mile  on  those  running  from  south  to  north.  *  *  *" 
"And  the  interior  lines  of  townships  intersected  by  the 
Muskingum,  and  of  all  townships  lying  east  of  that  river, 
which  have  not  been  heretofore  actually  subdivided  into  sec- 
tions, shall  also  be  run  and  marked.  *  *  *"  "And  in  all 
cases  where  the  exterior  lines  of  the  townships  thus  to  be 
subdivided  into  sections  or  half-sections  shall  exceed,  or  shall 
not  extend  six  miles,  the  excess  or  deficiency  shall  be  specially 
noted,  and  added  to  or  deducted  from  the  western  and  north- 
ern ranges  of  sections  or  half  sections  in  such  township,  ac- 
cording as  the  error  may  be  in  running  the  lines  from  east  to 
west  or  from  south  to  north."13 

§  35.  Corners  and  quarter-lines. — One  of  the  most  impor- 
tant acts  of  Congress  was  that  of  February  n,  1805,  which 
directs  the  subdivision  of  the  public  lands  into  quarter-sec- 
tions, and  that  all  of  the  corners  marked  in  the  public  surveys 
shall  be  established  as  proper  corners  of  sections  or  subdi- 
vision of  sections,  which  they  were  intended  to  designate,  and 
that  corners  of  half  and  quarter-sections,  not  marked,  shall 
be  placed  as  nearly  as  possible,  "equidistant  from  those  two 
corners  which  stand  on  the  same  line."  The  act  further  pro- 
vides, "the  boundary  lines  actually  run  and  marked  *  *  * 
shall  be  established  as  the  proper  boundary  lines  of  the  sec- 
tions or  subdivisions  for  which  they  were  intended;  and  the 
length  of  such  lines  as  returned  by  *  *  *  the  surveyor-gen- 
eral *  *  *  shall  be  held  and  considered  as  the  true  length 
thereof,  and  the  boundary  lines  which  shall  not  have  been 
actually  run  and  marked  as  aforesaid  shall  be  ascertained  by 
running  straight  lines  from  the  established  corners  to  the 

13Manual    (1902)    §   4. 


29  THE  SURVEY  OF  PUBLIC  LANDS  §  38 

opposite  corresponding  corners;  but  in  those  portions  of  the 
fractional  townships  where  no  such  opposite  or  corresponding 
corners  have  been  or  can  be  fixed,  the  said  boundary  lines  shall 
be  ascertained  by  running  from  the  established  corners  due 
north  and  south  or  east  and  west  lines,  as  the  case  may  be,  to 
tjie  *  *  *  external  boundary  of  such  fractional  township/'1 

§  36.  General  land  office  established. — The  general  land 
office  and  the  commissioner  thereof  were  provided  for  by 
the  act  of  April  25,  1812.  That  department  took  charge  of 
all  such  acts  and  things  touching  or  respecting  the  public 
lands  of  the  United  States,  as  were  theretofore  performed 
by  the  secretary  of  state,  register  of  the  treasury  and  of  the 
secretary  of  war,  "or  which  shall  hereafter  by  law  be  assigned 
to  the  said  office."  All  of  these  matters  are  now  under  the 
supervision  of  the  commissioner  of  the  general  land  office, 
who  acts  under  the  interior  department. 

§  37.  Sale  of  public  lands. — Congress  by  the  act  of  April 
24,  1820,  deals  with  the  sale  of  the  public  lands  in  half-quarter 
sections,  and  requires  that  "in  every  case  of  the  division  of  a 
quarter-section  the  lines  for  the  division  thereof  shall  run 
north  and  south  *  *  *  and  fractional  sections  containing  one 
hundred  and  sixty  acres  and  upwards,  shall,  in  like  manner,  as 
nearly  as  practicable,  be  subdivided  into  half-quarter  sections, 
under  such  rules  and  regulations  as  may  be  prescribed  by  the 
secretary  of  the  treasury;  but  fractional  sections  containing 
less  than  one  hundred  and  sixty  acres  shall  not  be  divided.15 

§  38.  Special  rules  for  survey  of  water  frontage. — By  the 
act  of  May  24,  1824,  it  was  provided,  "that  whenever  in  the 
opinion  of  the  President  of  the  United  States,  a  departure 
from  the  ordinary  mode  of  surveying  land  on  any  river,  lake, 
bayou,  or  water  course  would  promote  the  public  interest,  he 
may  direct  the  surveyor-general,  in  which  district  such  land 

"Manual  (1902)   §  5,  Post  ch.  3.        15Post    ch.    Ill;    Manual    (1902) 

§   7. 


§  39  SURVEYING   AND   BOUNDARIES  30 

is  situated,  and  where  the  change  is  intended  to  be  made,  under 
such  rules  and  regulations  as  the  President  may  prescribe,  to 
cause  the  land  thus  situated  to  be  surveyed  in  tracts  of  two 
acres  in  width,  fronting  on  any  river,  bayou,  lake,  or  water 
course,  and  running  back  the  depth  of  forty  acres."16  Under 
this  provision  the  lands  bordering  on  bodies  of  water  in  the 
past  have  been  frequently  surveyed.  The  practice  does  not 
seem  to  be  followed  to  any  extent  at  this  time.  By  following 
the  above  rule  many  settlers  were  given  riparian  rights  on 
such  waters.  These  were  considered  to  be  and  were  valuable. 
In  making  resurveys  of  such  lands  the  surveyor  should  have 
a  copy  of  the  special  instructions  given  together  with  full 
notes  of  the  survey. 

§  39.  Subdivision  of  sections  and  quarter-sections. — By  the 
act  of  April  5,  1832,  Congress  directed  the  subdivision  of  the 
public  lands  into  quarter-quarters;  that  in  the  case  of  the 
division  of  a  half-quarter  section  the  dividing  line  should  run 
east  and  west;  that  fractional  sections  should  be  divided  under 
rules  prescribed  by  the  secretary  of  the  treasury.  That  of- 
ficial accordingly  directed  that  fractional  sections  containing 
less  than  one  hundred  and  sixty  acres,  or  the  residuary  portion 
of  a  fractional  section,  after  the  subdivision  into  as  many 
quarter-quarter  sections  as  it  is  susceptible  of,  may  be  sub- 
divided into  lots,  each  containing  the  quantity  of  a  quarter- 
quarter  section,  as  nearly  as  practicable,  by  so  laying  down 
the  lines  of  subdivision  that  they  shall  be  20  chains  wide 
and  marked  on  the  plat  of  subdivision,  as  are  also  the  areas 
of  the  quarter-quarters  and  residuary  fractions.  This  act 
also  provided  that  the  corners  and  contents  should  be  ascer- 
tained as  nearly  as  possible  in  the  manner  directed  by  the  act 
of  February  n,  1805."  This  provision  is  the  foundation  for 
the  subdivision  of  fractional  sections  into  lots  and  is  now,  and 

^Manual    (1902)    §    8.  17Post    ch.    Ill;    Manual    (1902) 

§   10. 


31 


THE  SURVEY  OF  PUBLIC  LANDS  §  41 


since  its  enactment  has  been,  substantially  followed.  Rules 
have  been  made  to  be  followed  in  this  division,  the  numbering 
of  lots  and  computation  of  the  area  thereof,  etc.18 

§  40.  Reorganization  of  general  land  office. — The  land  of- 
fice was  reorganized  under  the  act  of  July  4,  1836,  which 
provided  the  executive  duties  of  that  office,  "should  be  sub- 
ject to  the  supervision  and  control  of  the  commissioner  of  the 
general  land  office  under  the  direction  of  the  President  of  the 
United  States."  By  the  act  of  May  3,  1849,  the  department 
of  the  interior  was  established.  That  act  provided,  in  part, 
"that  the  secretary  of  the  interior  shall  perform  all  the  duties 
in  relation  to  the  general  land  office,  of  supervision  and  ap- 
peal, now  discharged  by  the  secretary  of  the  treasury. 
*  *  *  "19  The  general  land  office  still  remains  in  the  de- 
partment of  the  interior.  All  matters  pertaining  to  the  super- 
vision of  the  public  lands  and  the  survey  thereof  should  be 
taken  up  with  that  department.20 

§  41.  System  of  designating  corners. — The  land  depart- 
ment of  the  government  has  devised  a  unique,  useful,  easily 
remembered  and  skillful  method  of  designating  the  various 
corners  of  the  several  sections  of  a  township.  This  system  of 
notation  was  used  extensively  in  the  early  surveys  in  keeping 
the  notes.  By  it  the  surveyor  can  readily  designate  any 
corner  by  references  to  letters  and  numerals.  As  a  matter  of 
fact,  the  scheme  is  a  key  to  all  of  the  corners  and  quarter- 
corners  of  the  sections  of  a  township  and  also  to  the  town- 
ship corners  of  such  township.  Fig.  6.  This  diagram  repre- 
sents the  key.  Section  corners  are  represented  by  a  reference 
to  all  of  the  sections  surrounding  the  corner,  thus :  Corner 
to  sections  16,  17,  20  and  21.  Quarter-corners  are  designated 
by  using  the  letters  on  the  ends  of  the  line  upon  which  the 
quarter-corner  is  found  and  then  designating  the  particular 

18Post  ch.  VIII;  Manual  (1902)        "Manual    (1902)    §    11. 
§§230-237.  *opost    ch.    III. 


§41 


SURVEYING   AND   BOUNDARIES 


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quarter  corner  by  its  number  on  such  line.  Suppose  it  is  de- 
sired to  refer  to  the  quarter-corner  between  sections  14  and 
15.  The  proper  designation  would  be:  C  to  R  at  4.  Like- 
wise the  quarter  corner  between  sections  26  and  35  would  be : 
M  to  U  at  2.  It  will  be  observed  that  the  exterior  section 
corners  are  represented  by  capitals,  and  exterior  quarter- 
corners  by  smdl  letters.  The  scheme  places  the  letter  "A"  at 
the  northeast  corner  of  the  township.  The  north  quarter- 
corner  of  section  i  is  represented  by  the  letter,  "A,"  and  thence, 
in  like  manner,  proceed  westerly  around  the  township.  In- 
terior quarter  corners  are  marked  by  numerals,  running  from 


33  THE  SURVEY  OF  PUBLIC  LANDS  §    43 

"i"  to  "6",  inclusive.  For  the  quarter-cornel s  on  east  and 
west  lines  begin  on  the  easterly  tier  of  sections.  The  letters 
run  from  "A"  to  "Y"  inclusive,  and  the  numerals  from  "i" 
to  "6"  inclusive. 

This  key  can  be  easily  learned  and  carried  in  the  memory. 
In  the  earlier  surveys  the  key  was  arranged  differently,  the 
letter  "A"  being  placed  in  the  upper  left  hand  corner  and  the 
remaining  letters  followed  in  the  opposite  direction  to  the 
east  across  the  north  boundary  of  the  township. 

§  42.  Designations  of  corners  subdividing  sections. — 
Many  private  surveyors  use  a  similar  scheme  or  key  to  desig- 
nate the  corners  in  the  subdivision  of  a  section.  This  scheme 
is  shown  in  Fig.  7.21  It  will  be  readily  noticed  that  corners 
are  designated  in  the  order  of  their  importance.  First,  the 
section  corners  beginning  with  the  northwest  corner  of  the 
section  is  referred  to  by  the  numeral  "i,"  then  northeast, 
southeast  and  southwest  corners  follow  by  "2,"  "3,"  and  "4," 
respectively.  The  designation  of  quarter-corners  begin  with 
the  north  quarter-corner,  represented  by  "5,"  then  the  east, 
south  and  west  quarter-corners  by  "6,"  "7,"  and  "8,"  re- 
spectively. The  exterior  i/i6th  corners  are  represented  by 
"9,"  "10,"  "n,"  "12,"  "13,"  "14,"  "15,"  and  "16."  Small 
letters,  as  a,  b,  c  and  d  represent  the  interior  i/8th  corners, 
and  e,  f,  g  and  h  the  interior  i/i6th  corners.  The  center  of 
the  section  is  represented  by  a  capital  "C."  The  reader  will  do 
well  to  study  the  scheme  of  the  key  and  fix  it  firmly  in  the 
mind.  These  keys  will  be  found  very  useful  in  keeping  the 
notes  of  a  survey  in  the  field  and  in  the  references  to  corners 
in  the  record  of  such  survey.  These  two  schemes  for  designat- 
ing the  various  corners  of  townships  and  sections  were  used  by 
the  writer's  father  more  than  50  years  ago  in  executing  sur- 
veys in  Wisconsin.  They  are  little  used  at  this  time. 

§  43.  Material  of  monuments. — A  very  essential  matter  is 
the  providing  of  suitable  material  with  which  to  make  monu- 

2iHodgman's  Manual  of  Surveying. 


§    44  SURVEYING  AND  BOUNDARIES  34 

ments.  This  has  given  the  government  much  concern  from 
time  to  time.  There  was  much  slackness  in  that  regard  in 
executing  the  early  surveys.  Formerly  corners  were  marked 
by  sinking  a  post  of  timber  at  the  proper  place.  If  in  a  tim- 
bered country  witness  trees  were  marked  and  noted  in  the 
notes.  If  on  the  prairie,  pits  were  dug  and  mounds  builded. 
The  wooden  posts  soon  decayed;  the  trees  were  cut  down  or 
destroyed;  the  pits  filled  up;  the  mounds  leveled,  and  the 
result  was  a  lost  corner.  In  some  localities  substantial  stones 
were  set  in  the  ground,  but  this  was  the  exception.  In  1908, 
Congress  provided  for  the  purchase  of  suitable  metal  monu- 
ments for  marking  the  government  corners  and  since  that 
date  government  corners  have  been  marked  by  monuments 
made  of  iron  or  steel  of  a  designated  size  and  sunk  well  into 
the  earth.  These  metal  monuments  are  marked  so  as  to 
designate  the  particular  section.22 

§  44.  The  contract  system  and  a  permanent  corps. — For 
many  years  and  until  quite  recently  it  was  tire  practice  of  the 
government  to  let  by  contract  certain  sections  of  the  public 
lands  to  be  surveyed.  This  did  not  prove  very  satisfactory  as 
surveyors  frequently  neglected  their  work;  did  not  plant 
proper  monuments;  were  careless  in  their  operations;  and 
frequently  defrauded  the  government  by  not  executing  the 
survey  which  they  returned  as  executed.  In  1910,  Congress 
abolished  this  contract  system  and  the  interior  department  was 
authorized  to  employ  a  permanent  body  of  surveyors,  known 
as  United  States  surveyors.  Since  that  date  a  permanent 
body  of  surveyors  has  been  employed  by  the  secretary  of  the 
interior.  They  are  public  officials  and  their  work  has 
demonstrated  the  wisdom  of  the  change.23 

§  45.  General  rules  founded  on  congressional  legislation. — 
The  commissioner  of  the  land  office  has  deduced  the  following 
rules  as  a  synopsis  of  congressional  legislation  pertaining  to 
the  survey  of  the  public  lands : 

"Manual,   (1919)    §  242.  "Manual,   (1919)   §  II. 


35 


THE  SURVEY  OF  PUBLIC  LANDS 


§45 


First.  The  boundaries  of  the  public  lands  established  by  a 
government  surveyor,  approved  by  the  surveyor-general  and 
accepted  by  the  commissioner  of  the  land  office,  are  un- 
changeable. 

Second.  The  original  corners  established  by  the  govern- 
ment surveyors  must  stand  as  the  true  corners,  "whether  in 
the  place  shown  by  the  field-notes  or  not." 


I 


16 


8 


15 


14 


a 


Fiq.J 


10 


13 


II 


6 


\l 


Third.    The  quarter-quarter  section  corners  shall  be  placed 
on  the  line  connecting  the  section  and  quarter-section  corners, 


§    45  SURVEYING  AND  BOUNDARIES  36 

and  midway  between  them,  "except  on  the  last  half  mile  of  the 
section  lines  closing  on  the  north  and  west  boundaries  of  a 
township,  or  on  other  lines  between  fractional  or  irregular 
sections." 

Fourth.  The  center  lines  of  a  regular  section  will  be 
straight,  running  from  the  quarter  section  corner  on  "one 
boundary  of  the  section  to  the  corresponding  corner  on  the 
opposite  section  line." 

Fifth.  In  a  fractional  section  "where  no  opposite  corre- 
sponding quarter-section  corner  has  been  or  can  be  established," 
the  center  line  thereof  will  be  run  from  the  proper  quarter-sec- 
tion corner  "as  nearly  in  a  cardinal  direction"  to  the  meander 
line  or  boundary  of  such  fractional  section,  "as  due  parallelism 
with  section  lines  will  permit." 

Sixth.  Lost  or  obliterated  corners  must  be  restored  in  their 
original  locations.  Actions  of  surveyors  resulting  in  changes 
of  lines  and  disturbing  questions  of  ownership  are,  of  course, 
subject  to  review  by  the  courts.24 

The  above  rules  are  deductions  from  numerous  decisions  of 
the  federal  and  state  courts  and  citations  of  decisions  will  be 
made  later  in  the  work.  Referring  to  Rule  Third,  as  will  be 
seen  later  in  the  work,  the  quarter-quarter  section  corners  of 
sections  on  the  north  and  west  sides  of  a  section  will  be  es- 
tablished at  exactly  twenty  chains,  original  measure,  from 
the  quarter-section  corner.25  For  citations  to  decisions  bear- 
ing on  Rule  Fifth  see  same  chapter.26 

States  have  frequently  attempted  legislation  along  lines  di- 
rectly in  conflict  with  these  principles  and  such  legislation  has 
uniformly  been  held  contrary  to  the  federal  law  and  invalid.27 

2*Manual,   (1919)   §  10.  26Post  ch.  XIX. 

25Post  ch.  XIX.  27Post  ch. 


CHAPTER  III 


SURVEYS  AND  SURVEYORS 


Sec. 

46.  Generally. 

47.  Completion  of  survey. 

48.  Surveyors-general ;    powers 

devolve  on  commissioner  of 
land  office. 

49.  Field-notes,  delivered  to  state — 

Access  thereto. 

50.  Field-notes,    condition    of    de- 

livery. 

51.  Surveyor-general,  general   du- 

ties. 

52.  Basis  of  system  of  survey. 

53.  Government  survey  conclusive. 

54.  Official  plat  governs. 

55.  When    lands    considered    sur- 

veyed. 

56.  Boundaries    and    contents    of 

public    lands  —  How    ascer- 
tained. 

57.  Deficiency. 

58.  Water  line  a  boundary. 

59.  To  find  center  of  section. 

§  46.  Generally. — Surveyors  and  attorneys  have  frequent 
occasion  to  examine  the  statutes  of  the  United  States  pertain- 
ing to  the  survey  of  the  public  lands.  The  former  seldom 
have  the  federal  statutes,  and  many  of  the  latter  may  not  have 
easy  access  to  them,  as  they  are  at  the  present  time.  It  has 
been  thought  that  the  professions  will  find  such  statutes  of 
great  use  in  an  examination  of  the  instructions  promulgated 
by  the  land  department  to  be  followed  in  the  execution  of  a 
given  survey.  Hence  in  this  chapter  we  quote  so  much  of 
such  statutes  as  we  deem  necessary  for  the  work.  We  num- 
ber the  same  to  correspond  with  the  numbers  of  the  Revised 
Statutes  and  also  of  the  Compiled  Statutes  of  the  United 

37 


Sec. 

60.  Actual  survey  governs. 

61.  Lines     of     division    of     half- 

quarter    sections  —  How 
run? 

62.  Fractional   sections. 

63.  Variance  in   form   of  surveys 

on  rivers,  etc. 

64.  Departure     from     rectangular 

system  in  California. 

65.  Extension    of    public    surveys 

over  mineral  land. 

66.  When  survey  may  be  had  by 

settlers  of  township. 

67.  Deposit   for    expenses   deemed 

an  appropriation. 

68.  Deposits   made  by  settlers   to 

apply  on  lands. 

69.  Modification  of   lines   in   Ne- 

vada. 

70.  Settlers'   rights  in  unsurveyed 

lands. 


§    47  SURVEYING   AND   BOUNDARIES  38 

States,  1918.  The  numbers  will  follow  the  quotation  by 
reference  to  the  foot  notes,  thus;  (Rev.  Stat.  §  2218 — Comp. 
Stat.  §  445 1 ) .  The  quotations  are  given  as  the  statutes  stand 
to-day. 

The  author  would  call  attention  to  the  notes  following  the 
several  statutes  and  the  citations  thereto.  These  will  be  in 
the  shape  of  a  digest  of  some  of  the  important  cases  on  sur- 
veying; and  will  be  found  useful  in  an  examination  of  the 
authorities.  However,  a  more  extensive  citation  of  authori- 
ties will  be  found  later  in  the  work.  The  reader  is  referred 
to  the  appropriate  chapter. 

§  47.  Completion  of  survey.— The  act  provides  in  part: 
"The  secretary  of  the  interior  shall  take  all  the  necessary 
measures  for  the  completion  of  the  surveys  in  the  several 
surveying-districts  for  which  surveyor-generals  have  been,  or 
may  be  appointed,  at  the  earliest  periods  compatible  with  the 
purposes  contemplated  by  law :"  and  the  act  goes  on  to  say 
that  "whenever  the  surveys  and  records  of  any  such  district 
are  completed,  the  surveyor-general  thereof  shall  be  required 
to  deliver  over  to  the  secretary  of  state  of  the  respective 
states,  including  such  surveys,  or  to  such  other  officer  as  may 
be  authorized  to  receive  them,  all  the  field-notes,  maps, 
records,  and  other  papers  appertaining  to  land  titles  within  the 
same ;  and  the  office  of  surveyor-general  in  every  such  district 
shall  thereafter  cease  and  be  discontinued."1 

§  48.  Surveyors-general;  powers  devolve  on  commis- 
sioner of  land  office. — "In  all  cases  where,  as  provided  in  the 
preceding  section  the  field  notes,  maps,  records,  and  other 
papers  appertaining  to  land  titles  in  any  state  are  turned  over 
to  the  authorities  of  such  state,"  continues  the  act,  "the  same 
authority,  powers,  and  duties  in  relation  to  the  survey,  resur- 
vey  or  subdivision  of  the  lands  therein,  and  all  matters  and 
things  connected  therewith,  as  previously  exercised  by  the 

'Rev.   Stat.   §  2218;   Comp.  Stat. 
§  4451- 


39  SURVEYS  AND  SURVEYORS  §    51 

surveyor-general,  whose  district  included  such  state,  shall  be 
vested  in,  and  devolved  upon,  the  commissioner  of  the  general 
land  office/'2 

§  49.  Field-notes  delivered  to  state — Access  thereto. — And 
as  to  access  to  field-notes  the  act  provides :  "Under  the  author- 
ity and  direction  of  the  commissioner  of  the  land  office,  any 
deputy  surveyor  or  other  agent  of  the  United  States  shall 
have  free  access  to  any  such  field-notes,  maps,  records,  and 
other  papers,  for  the  purpose  of  taking  extracts  therefrom,  or 
making  copies  thereof,  without  charge  of  any  kind."3 

§  50.  Field-notes,  condition  of  delivery. — Further  along  in 
the  act  we  find :  "The  field-notes,  maps,  records,  and  other 
papers  mentioned  in  section  2219,  shall,  in  no  case,  be  turned 
over  to  the  authorities  of  any  state,  until  such  state  has  pro- 
vided by  law  for  the  reception  and  safe  keeping  of  the  same 
as  public  records,  and  for  the  allowance  of  free  access  to  the 
same  by  the  authorities  of  the  United  States."4 

§  51.  Surveyor-general,  general  duties. — As  to  the  duties 
of  the  surveyor-general  it  is  provided :  "Every  surveyor-gen- 
eral shall  engage  a  sufficient  number  of  skillful  surveyors 
and  his  deputies,  to  whom  he  is  authorized  to  administer  the 
necessary  oaths  upon  their  appointments.  He  shall  have 
authority  to  frame  regulations  for  their  directions,  not  incon- 
sistent with  law  or  the  instructions  of  the  general  land  office, 
and  to  remove  them  for  negligence  or  misconduct  in  office." 

The  act  further  provides  that:  "He  shall  cause  to  be  sur- 
veyed, measured  and  marked,  without  delay  all  base  and 
meridian  lines  through  such  points  and  perpetuated  by  such 
monuments,  and  such  other  correction  parallels  and  meridians 
as  may  be  prescribed  by  law  or  by  instructions  from  the  gen- 
eral land  office,  in  respect  to  the  public  lands  within  his  sur- 

2Rev.  Stat.  §  2219;  Comp.  Stat.       4Rev.  Stat.  §  2221;  Comp.  Stat. 
§  4452.  §  4454. 

3Rev.  Stat.   §  2220;  Comp.   Stat 
§  4453- 


§51  SURVEYING   AND   BOUNDARIES  40 

veying  district,  to  which  the  Indian  title  has  been  or  may  be 
hereafter  extinguished." 

It  has  been  held  that,  "An  act  directing  the  duty  of  survey- 
ors of  land/'  is  merely  directory  to  the  officer  and  does  not 
make  the  validity  of  the  survey  depend  upon  his  conformation 
to  its  requirements.5 

The  act  further  provides  that:  "He  shall  cause  to  be  sur- 
veyed all  private  land  claims  within  his  district  after  they 
have  been  confirmed  by  authority  of  Congress,  so  far  as 
may  be  necessary  to  complete  the  survey  of  the  public  land." 

The  courts  lay  down  the  rule  that  some  latitude  is  allowed 
to  the  surveyor-general  in  the  subdivision  of  fractional  sec- 
tions, containing  more  than  one  hundred  and  sixty  acres,  and 
he  is  not  obliged  to  lay  off  a  full  quarter  or  half-quarter 
though  capable  of  such  division.6  And  it  is  presumed  that  the 
survey  was  made  according  to  instructions.7  Still  if  instruc- 
tions were  not  followed,  the  recognition  of  the  survey  by  the 
government  and  the  sale  of  lands  in  accordance  therewith  will 
constitute  a  waiver  of  irregularities.8  And  it  is  the  rule  that 
original  surveys,  where  actually  made,  are  presumed  to  be 
correct  and  that  line  between  sections  i  and  2  must  be  estab- 
lished by  running  a  straight  line  between  the  two  section  corn- 
ers.9 Surveys  made  and  officially  approved  are  binding  and 
can  not  be  set  aside.10  And  a  survey  made  under  government 
authority  must  stand.11 

Continuing  the  act  provides:  "He  shall  transmit  to  the 
register  of  the  respective  land  offices  within  his  district  gen- 
eral and  particular  plats  of  all  land  surveyed  by  him  for  each 
land  district;  and  he  shall  forward  copies  of  such  plats  to  the 
commissioner  of  the  general  land  office." 

"He  shall,  so  far  as  compatible  with  the  desk  duties  of  his 

5Craig    v.    Radford,    3     Wheat.  8Hedrick  v.  Eno,  42  la.  411. 

(U.  S.)  594,  4  L.  ed.  467.  9Hamil  v.  Carr,  21  Ohio  St.  358. 

6Gazzan    v.     Phillips,    20    How.  10Gibson  v.  Chouteau,  39  Mo.  536. 

(U.  S.)  372,  IS  L.  ed.  958.  "Stanford    v.    Taylor,    18    How. 

'Hedrick  v.  Eno,  42  Ia>  411*  (U.  S.)  409,  15  L.  ed.  453. 


41  SURVEYS  AND  SURVEYORS  §    5 1 

office,"  the  act  provides,  "occasionally  inspect  the  surveying 
operations  while  in  progress  in  the  field,  sufficiently,  to  satisfy 
himself  of  the  fidelity  of  the  execution  of  the  work  according 
to  contract,  and  the  actual  and  necessary  expenses  incurred  by 
him  while  so  engaged  shall  be  allowed :  and  where  it  is  incom- 
patible with  his  other  duties  for  a  surveyor-general  to  devote 
the  time  necessary  to  make  a  personal  inspection  of  the  work 
in  progress,  then  he  is  authorized  to  depute  a  confidential 
agent  to  make  such  examination ;  and  the  actual  and  necessary 
expenses  of  such  person  shall  be  allowed  and  paid  for  that 
service,  and  five  dollars  a  day  during  the  examination  in  the 
field;  but  such  examination  shall  not  be  protracted  beyond 
thirty  days;  and  in  no  case  longer  than  is  actually  necessary; 
and  when  a  surveyor-general,  or  any  person  employed  in  his 
office  at  a  regular  salary,  is  engaged  in  such  special  service, 
he  shall  receive  only  his  necessary  expenses  in  addition  to 
his  regular  salary."12 

The  act  provides  various  rules  for  surveys.  We  find: 
"The  public  land  shall  be  divided  by  north  and  south  lines 
run  according  to  the  true  meridian,  and  by  others  crossing 
them  at  right  angles,  so  as  to  form  townships  of  six  miles 
square,  unless  where  the  line  of  an  Indian  reservation,  or  of 
tracts  of  land  heretofore  surveyed  or  patented,  or  the  course  of 
navigable  rivers,  may  render  this  impracticable;  and  in  that 
case  this  rule  must  be  departed  from  no  further  than  such 
particular  circumstances  require." 

The  courts  hold  that  as  to  whether  "due  west"  in  a  contract 
means  at  right  angles  to  the  true  meridian  depends  on  the 
original  survey  to  which  reference  is  made  and  that  may  be 
shown  by  extrinsic  evidence.13 

Bearing  on  the  subdivision  of  townships  we  find  the  act 

provides :     "The  townships  shall  be  subdivided  into  sections 

containing,  as  near  as  may  be,  six  hundred  and  forty  acres 

12Rev.  Stat.  §  2223 ;   Comp.  Stat       13McKinney  v.  McKinney,  8  Ohio 

§  4457.  St.  423- 


§    51  SURVEYING  AND  BOUNDARIES  42 

each,  by  running  through  the  same,  each  way,  parallel  lines  at 
the  end  of  every  two  miles;  and  by  making  a  corner  on  each 
of  such  lines  at  the  end  of  every  mile.  The  sections  shall  be 
numbered  respectively,  beginning  with  number  one  in  the 
northeast  section  and  proceeding  west  and  east  alternately 
through  the  township  with  progressive  numbers  till  the  thirty- 
sixth  be  completed." 

Of  course,  the  survey  of  the  public  lands  of  the  United 
States  can  only  be  made  under  the  authority  of  Congress.14 
And  a  state  can  not  sell  lands  before  they  are  so  surveyed.15 

With  reference  to  marking  corners  the  act  provides :  "The 
deputy  surveyors,  respectively,  shall  cause  to  be  marked  on  a 
tree  near  each  corner  established  in  the  manner  described,  and 
within  the  section,  the  number  of  such  section,  and  over  it  the 
number  of  the  township  within  which  such  section  may  be ;  and 
the  deputy  surveyors  shall  carefully  note,  in  their  respective 
field-books,  the  names  of  the  corner  trees  marked  and  the 
numbers  so  made." 

"Where  the  exterior  lines  of  the  townships  which  may  be 
divided  into  sections  or  half-sections  exceed,  or  do  not  extend 
six  miles,"  we  are  told,  "the  excess  or  deficiency  shall  be 
specially  noted,  and  added  to  or  deducted  from  the  western 
and  northern  ranges  of  sections  or  half-sections  in  such  town- 
ship, according  as  the  error  may  be  in  running  the  lines  from 
east  to  west  or  from  north  to  south:  the  sections  and  half- 
sections  bounded  on  the  northern  and  western  lines  of  such 
townships  shall  be  sold  as  containing  only  the  quantity 
expressed  in  the  returns  and  plats  respectively,  and  all  others 
as  containing  the  complete  legal  quantity." 

The  courts  uniformly  hold  that  monuments  fixed  by  the 
government  are  conclusive,  and  that  fractional  sections  on 
north  and  west  sides  of  a  township  must  be  subdivided  under 
federal  laws  and  regulations  and  a  state  law  in  conflict  there- 

14Grogan  v.  Knight,  27  Cal.  515. 
ir>Grogan  v.  Knight,  27  Cal.  515. 


43  SURVEYS  AND  SURVEYORS  §    51 

with  is  void.16  And  interior  section  corners,  if  lost,  must  be 
established  equidistant  between  corresponding  section  corners.17 

"All  lines  shall  be  plainly  marked  upon  trees,"  we  are  told, 
"and  measured  with  chains,  containing  two  perches  of  sixteen 
and  one-half  feet  each,  subdivided  into  twenty-five  equal 
links;  and  the  chain  shall  be  adjusted  to  a  standard  to  be  kept 
for  that  purpose." 

And  it  is  the  rule  that  courses  and  distances  must  yield  to  a 
call  for  natural  objects,  and  if  a  patent  refer  to  a  plat,  and  that 
plat  shows  a  water  course  running  through  the  land,  the  lines 
must  correspond  with  such  water  course,  though  they  may 
not  correspond  with  courses  and  distances.18  When  the  sur- 
vey and  patent  or  deed  call  for  boundary  down  a  river  to  its 
junction  with  another  river,  and  thence  up  said  river,  such 
description  must  govern,  though  courses  and  distances  do  not 
agree  therewith.19  And  if  all  the  calls  in  a  survey  can  not  be 
complied  with,  because  some  are  so  vague  and  uncertain,  they 
may  be  rejected  or  controlled  by  other  material  calls  which 
are  consistent  and  certain.20  It  is  the  settled  rule  that  when 
no  other  figure  is  called  for  in  a  survey,  it  is  to  be  surveyed  in 
the  form  of  a  square  and  large  enough  to  contain  the  full 
area.21 

As  to  mention  in  the  field-notes  of  natural  objects  we  find : 
"Every  surveyor  shall  note  in  his  field-book  the  true  situation 
of  all  mines,  salt  licks,  salt  springs,  and  mill-seats  which  come 
to  his  knowledge;  all  water  courses  over  which  the  line  he 
runs  may  pass ;  and  also  the  quality  of  the  lands." 

It  is  universally  held  that  a  call  for  a  natural  object,  as  a 
river,  a  known  stream,  a  spring  or  even  a  marked  line,  will 
control  both  courses  and  distances.22  And  when  plats  are 

16Knight  v.   Elliott,  57  Mo.  31 7-  20Shipp  v.  Miller,  2.  Wheat.    (U. 

17Knight  v.   Elliott,   57   Mo.  317.  S.)  316,  4  L.  ed.  248. 

18McIvers  v.  Walker,  9  Cranch.  21Shipp  v.  Miller,  2  Wheat. 

(U.  S.)  173,  3  L  ed.  694.  (U.  S.)  316,  4  L.  ed.  248. 

19Brown  v.  Huger,  21  How.  22Newsom  v.  Pryor  7  Wheat. 

(U.  S.)  305,  16  L.  ed.  125.  (U.  S.)  7,  5  L.  ed.  382. 


§    51  SURVEYING  AND  BOUNDARIES  44 

returned  and  grants  made  without  an  actual  survey  the  rule  of 
construction  which  has  been  adopted,  in  order  to  settle  the 
conflicting  claims  of  different  parties,  is  that  the  most  cer- 
tain calls  shall  control  those  which  are  less  material  and  less 
certain.23  The  presumption  is  always  in  favor  of  every  grant 
issued  in  the  form  prescribed  by  law,  and  the  burden  of  proof 
is  on  him  who  assails  such  grant.2* 

The  act  provides  for  the  return  of  the  field-books  and  the 
making  and  return  of  plats  of  the  several  surveys  in  the  fol- 
lowing manner:  "These  field-books  shall  be  returned  to  the 
surveyor-general,  who  shall  cause  therefrom  a  description  of 
the  whole  lands  surveyed  to  be  made  out  and  transmitted  to 
the  officers  who  may  superintend  the  sales.  He  shall  also 
cause  a  fair  plat  to  be  made  of  the  townships  and  fractional 
parts  of  townships  contained  in  the  lands,  describing  the  sub- 
divisions thereof,  and  the  marks  of  the  corners.  This  plat 
shall  be  recorded  in  books  to  be  kept  for  that  purpose ;  and  a 
copy  thereof  shall  be  kept  open  at  the  surveyor-general's  office 
for  public  information,  and  other  copies  shall  be  sent  to  the 
places  of  the  sale,  and  to  the  general  land  office."25 

It  is  not  necessary  that  the  deputy  who  made  the  survey 
should  make  the  plats  and  certify  to  them.  That  may  be  done 
by  the  principal  surveyor.26  It  is  said  that  selection  of  lands 
under  an  erroneous  survey  does  not  attach  until  a  legal  survey 
is  made.27  The  approval  of  a  survey  and  plat  made  therefrom 
import  verity,  and  the  court  will  not  permit  it  to  be  attacked.28 
In  fact,  a  patent  can  not  be  collaterally  attacked.29  The  orig- 
inal descriptions  of  subdivisions  of  public  lands  made  by  the 
surveyor-general  from  the  field-notes  or  books  of  the  deputy 
surveyors,  and  the  plats  showing  such  subdivisions,  are  evi- 

23Newsom   v.    Pryor,   7   Wheat.  26Taylor    v.    Brown,    5    Cranch 

(U.  S.)  7,  5  L.  ed.  382.  (U.  S.)  234,  3  L.  ed.  88. 

2*Patterson     v.     Jenks,     2     Pet.  "Barnard    v.    Ashley,    18    How. 

(U.  S.)  216,  7  L.  ed.  402.  (U.  S.)  43,  15  L.  ed.  285. 

25Rev.  Stat.  §  2395;  Comp.  Stat.  28Mott  v.   Smith,   16  Cal.  533. 

§   4803.  29Mott  v.   Smith,   16  Cal.  533. 


45  SURVEYS  AND  SURVEYORS  §    55 

clence  as  to  their  boundaries;  and  duly  authenticated  descrip- 
tions from  such  plats  are  also  evidence.30  But  it  is  doubtful 
whether  original  field-notes  of  deputy  surveyors  are  evidence 
of  the  boundaries;  but  if  they  are  they  must  be  controlled  by 
the  descriptions  and  plats  made  by  the  surveyor-general.31 

§  52.  Basis  of  system  of  survey. — The  basis  of  our  present 
rectangular  system  of  surveys  is  the  act  of  May  18,  1796. 
Among  other  things  this  act  authorized  a  sale  of  the  public 
domain  ceded  by  Virginia.32 

§  53.  Government  survey  conclusive. — The  descriptions  of 
land  and  plat  of  original  survey  filed  in  the  general  land 
office,  as  made  by  the  surveyor-general  from  the  field-notes, 
are  conclusive,  and  the  section  lines  and  corners,  as  laid  down 
in  the  descriptions  and  plat,  are  binding  upon  the  general  gov- 
ernment and  upon  all  parties  concerned.33 

§  54.  Official  plat  governs. — It  has  been  held  that  where 
the  official  plat  and  approved  survey  located  premises  in  the 
northeast  quarter  of  a  section  and  the  patent  under  which 
plaintiff  claimed  the  land,  described  it  as  the  southeast  quar- 
ter of  the  section  "according  to  the  official  plat  of  the  survey 
returned  to  the  general  land  office  by  the  surveyor-general," 
neither  parol  evidence  nor  a  private  survey  could  be  shown  to 
establish  that  the  premises  were  located  in  the  southeast  quar- 
ter of  the  section.34  It  will  be  readily  seen  that  the  words 
quoted  in  the  description  in  the  patent  were  given  great  weight 
by  the  court  in  the  above  case. 

§  55.  When  lands  considered  surveyed. — Lands  are  not 
surveyed  lands  by  the  United  States  until  a  certified  copy  of 
survey  has  been  filed  in  the  local  land  office.33  The  approval 
of  the  surveyor-general  is  necessary  to  constitute  the  survey 

30Doe  v.  Hildreth,  2  Ind.  274.       690.    Home  v.  Smith,  159  U.  S.  40, 

31Doe  v.  Hildreth,  2  Ind.  274.       40  L.  ed.  68,  15  Sup.  Ct.  988. 

32Morton  v.  Nebraska,  21  Wall.  34Chapman  v.  Polack,  70  Cal. 
(U.  S.)  660,  22  L.  ed.  639-  487,  ii  Pac.  764. 

33Tolleston  Club  v.  State,  141  35United  States  v.  Curtner,  38 
Ind.  197,  38  N.  E.  214,  40  N.  E.  Fed.  i. 


§    56  PURVEYING  AND  BOUNDARIES  46 

and  make  it  complete.36  Doubtless  this  ruling  has  a  restraint 
on  the  local  land  office  and  requires  them  not  to  accept  appli- 
cations for  entries  until  the  survey  be  completed.  Confusion 
is  thus  avoided. 

§  56.  Boundaries  and  contents  of  public  lands — How  as- 
certained.— As  to  the  contents  of  the  several  subdivisions  of 
the  public  lands  and  the  boundaries  thereof,  the  act  further 
provides : 

"The  boundaries  and  contents  of  the  several  sections,  half- 
sections,  and  quarter  sections  of  the  public  lands  shall  be 
ascertained  in  conformity  with  the  following  principles : 

"First.  All  the  corners  marked  in  the  survey,  returned  by 
the  surveyor-general,  shall  be  established  as  the  proper  corners 
of  sections  or  subdivisions  of  sections,  which  they  were  in- 
tended to  designate;  and  the  corners  of  half  and  quarter-sec- 
tions, not  marked  on  the  surveys,  shall  be  placed  as  nearly  as 
possible  equidistant  from  the  two  corners  which  stand  on  the 
same  line. 

"Second.  The  boundary  lines  actually  run  and  marked  in 
the  surveys  returned  by  the  surveyor-general,  shall  be  estab- 
lished as  the  proper  boundary  lines  of  the  sections,  or  subdi- 
visions, for  which  they  were  intended,  and  the  length  of  such 
lines,  as  returned,  shall  be  held  and  considered  as  the  true 
length  thereof.  And  the  boundary  lines  which  have  not  been 
actually  run  and  marked  shall  be  ascertained,  by  running 
straight  lines  from  the  established  corners  to  the  opposite 
corresponding  corners;  but  in  those  portions  of  the  fractional 
townships  where  no  such  opposite  corresponding  corners  have 
been  or  can  be  fixed,  the  boundary  lines  shall  be  ascertained 
by  running  from  the  established  corners  due  north  and  south 
or  east  and  west  lines,  as  the  case  may  be,  to  the  water  course, 
Indian  boundary  line,  or  other  external  boundary  of  such  frac- 
tional township. 

36Medley   v.    Robertson,   55    Cal. 
396. 


47  SURVEYS  AND  SURVEYORS  §    56 

"Third.  Each  section  or  subdivision  of  section,  the  con- 
tents whereof  have  been  returned  by  the  surveyor-general, 
shall  be  held  and  considered  as  containing  the  exact  quantity 
expressed  in  such  return;  and  the  half-sections,  and  quarter- 
sections,  the  contents  whereof  shall  not  have  been  thus  re- 
turned, shall  be  held  and  considered  as  containing  the  one-half 
or  the  one-fourth  part,  respectively,  of  the  returned  contents  of 
the  section  of  which  they  may  make  part."37 

In  the  state  of  Ohio  an  original  surveyed  township  was 
divided  into  sections  "by  running  through  the  same,  each  way, 
parallel  lines  at  the  end  of  every  two  miles ;"  and  afterwards  a 
supplementary  survey  was  made  under  a  subsequent  act  which 
directed  that  these  two  mile  blocks  should  be  subdivided  "by 
running  straight  lines  from  the  mile  corners  thus  marked  to 
the  opposite  corresponding  corners."  It  was  held  that  where 
the  original  corners  in  a  certain  block  can  be  clearly  identified, 
the  corners  of  the  lines  of  subdivisions,  within  the  block,  can 
not  be  determined  by  proof  of  the  monuments,  blazes  or  other 
witness  found  in  other  blocks  of  the  township.38  And  the  true 
line  is  the  line  actually  run  by  the  government  surveyors.39 
And  it  is  almost  universally  held  that  a  meander  line  is  not  a 
boundary  line  but  that  it  is  a  line  run  to  determine  the  direc- 
tion of  the  stream  or  shore  of  body  of  water,  and  also  to  secure 
data  with  which  to  use  in  computing  the  area.40  The  profes- 
sions are  frequently  called  upon  to  construe  descriptions  in 
deeds  and  otherwise  and  where  a  survey  begins,  "on  the  bank 
of  a  river,"  and  is  carried  thence,  "  to  a  point  in  the  river," 
the  river  bank  being  straight  and  running  according  to  this 
line,  the  tract  surveyed  is  bounded  by  the  river.  And,  in  fact, 
the  court  holds  it  is  even  more  plainly  so,  when  it  begins  at  a 
post  "on  the  bank  of  the  river,  thence  north  5  degrees  east 

37Rev.  Stat.  §  2396;  Comp.  Stat.  39Goodman  v.  Myrick,  5  Ore.  65. 

§  4804.  ^Railway    Co     y>    Schurmeir,    7 

38Ginn  v.   Brandon,  29  Ohio   St.  Wall.  (U.  S.)  272,  19  L.  ed.  74. 
656. 


§    57  SURVEYING  AND  BOUNDARIES  4$ 

up  the  river  and  binding  therewith/'41  The  emphatic  thing 
about  the  latter  description  is  the  "post."  As  to  what  is  allu- 
vium the  courts  hold  that  it  means  an  addition  to  land  owned 
by  a  riparian  owner,  gradually  and  imperceptibly  made, 
through  causes,  either  natural  or  artificial,  by  the  water  to 
which  the  land  is  contiguous.42 

§  57.  Deficiency. — As  to  the  proper  manner  of  placing  the 
deficiency  in  a  fractional  section  the  courts  hold,  in  sections 
having  less  than  the  full  number  of  acres,  where  the  quarter- 
section  corner  can  not  be  found,  the  deficiency  will  not  be 
divided  between  the  quarter-sections  but  must  fall  on  the 
quarter  directly  on  the  township  or  range  line.  In  that  case 
there  was  a  state  law  which  provided  that  the  deficiency  in  such 
cases  should  be  taken  from  both  quarters.  Such  statute  being 
contrary  to  the  regulations  of  the  land  department  of  the  gov- 
ernment must  give  way  to  the  latter.43 

§  58.  Water  line  a  boundary. — In  those  cases  where  a 
water  line  is  a  boundary  of  a  tract  of  land,  that  water  line 
remains  the  boundary  no  matter  how  it  changes  by  accretion, 
and  a  deed  describing  the  land  as  a  certain  lot  by  number 
conveys  the  land  up  to  the  ever  changing  line  of  the  stream 
or  lake.  The  water  line  continues  the  boundary  line  and  the 
deed  carries  the  accretion.44  This  is  the  general  rule  but  there 
are  some  apparent  exceptions,  but  in  reality  not  exceptions  at 
all.  In  those  cases  where  the  government  survey  was  fraud- 
ulently executed  or  there  was  a  manifest  error  therein,  this 
rule  will  not  hold  but  the  meander  line  in  such  cases  may  be 
a  boundary  line.45 

§  59.  To  find  center  of  section. — As  will  be  seen  by  reading 
the  statutes  quoted,  there  is  but  one  way  to  proceed  legally. 

True,  there  are  state  statutes  which  attempt  to  provide  other 

41St  Clair  Co.  v.  Lovingston,  23 
Wall.   (U.  S.)  46,  23  L.  ed.  59-  "East  Omaha  Land  Co'  v"  Jef- 

«St.  Clair  Co.  v.  Lovingston,  23    fries>  40  Fed.  386. 
Wall.   (U.  S.)  46,  23  L.  ed.  59.  45Security     Land     &c.     Co.     v. 

48Vaughn   v.   Tate,  64   Mo.   491.    Burns,  87  Minn.  97,  91  N.  W.  304. 


49  SURVEYS  AND  SURVEYORS  §    6 1 

methods  of  finding  the  center  of  a  section  but  they  have  been 
declared  invalid  as  contravening  the  federal  statutes  or  of  a 
regulation  of  the  land  department.  The  true  rule  is  laid  down 
in  an  Iowa  case  and  is  as  follows:  To  find  the  center  of  a 
section  run  a  straight  line  from  the  quarter-corner  on  the  south 
to  the  quarter-corner  on  the  north,  and  from  quarter-corner 
on  the  east  to  the  quarter-corner  on  the  west  or  vice  versa  and 
the  intersection  of  the  two  lines  will  be  the  center.46  While 
this  is  the  general  rule  yet  in  those  cases  where  but  one  quar- 
ter-corner was  established  the  surveyor  is  required  to  run  a 
true  north  and  south  or  east  and  west  line,  as  the  case  may  be, 
from  the  known  quarter-corner.47  This  result  is  generally  ob- 
tained by  running  a  mean  between  the  known  lines,  i.  e.  if  a 
north  and  south  quarter-line  is  required  to  be  run,  the  surveyor 
will  run  a  mean  between  the  east  and  west  boundaries  of  the 
section.  And  the  true  corner  of  a  government  subdivision  is 
where  the  government  surveyors  placed  it.48 

§  60.  Actual  survey  governs.—- Of  course,  the  quantity  of 
land  in  a  patent  is  controlled  by  the  boundaries,  and  the  boun- 
daries, as  located  by  the  government  surveyor,  must  control, 
in  locating  the  quantity  of  land  in  a  patent.49  And  where  a 
line  was  actually  run  and  a  division  made,  in  an  original  survey 
of  land  by  the  government,  and  the  line  of  division  was  marked 
by  corners  or  natural  objects,  and  such  survey  be  established 
in  accordance  with  the  government  field-notes,  the  grantee 
in  a  patent  from  the  government  will  take  according  to  such 
survey,  notwithstanding  any  mistaken  description  as  to 
courses  and  distances,  or  the  quantity  of  land  to  be  conveyed.50 

§  61.  Lines  of  division  of  half -quarter  sections — How 
run? — As  to  the  division  of  half -quarter  sections,  the  act  pro- 

46Gerke   v.    Lucas,    92  Iowa   79,       49Stonewall     Phosphate     Co.     v. 
60  N.  W.  538.  Peyton,  39  Fla.  726,  23   So.  440. 

47Beardsley   v.   Crane,  52   Minn.       50Stonewall     Phosphate     Co.     v. 
537,  54  N.  W.  740.  Peyton,  39  Fla.  726,  23  So.  440. 

48Beardsley   v.   Crane,  52   Minn. 
537,  54  N.  W.  740. 


§    62  SURVEYING   AND  BOUNDARIES  50 

vides  that :  "In  every  case  of  the  division  of  a  quarter-section 
the  line  for  the  division  thereof  shall  run  north  and  south,  and 
the  corners  and  contents  of  half-quarter  sections  which  may 
hereafter  be  sold,  shall  be  ascertained  in  the  manner  and  on 
the  principles  directed  and  prescribed  by  a  section  preceding51 
and  fractional  sections  containing  one  hundred  and  sixty 
acres  or  upwards  shall  in  like  manner,  as  nearly  as  practicable, 
be  subdivided  into  half  quarter-sections,  under  such  rules  and 
regulations  as  may  be  prescribed  by  the  secretary  of  the  in- 
terior, and  in  every  case  of  the  division  of  a  half-quarter  sec- 
tion, the  line  for  the  division  thereof  shall  run  east  and  west, 
and  the  corners  and  contents  of  quarter-quarter  sections,  which 
may  thereafter  be  sold,  shall  be  ascertained  as  nearly  as  may 
be,  in  the  manner  and  on  the  principles,  directed  and  pre- 
scribed by  a  section  preceding ;  and  fractional  sections  contain- 
ing fewer  or  more  than  one  hundred  and  sixty  acres  shall  in 
like  manner,  as  nearly  as  may  be  practicable,  be  subdivided 
into  quarter-quarter  sections,  under  such  rules  and  regulations 
as  may  be  prescribed  by  the  secretary  of  the  interior."52 

§  62.  Fractional  sections. — As  to  the  survey  and  number- 
ing of  lots  in  fractional  sections  the  reader  is  referred  to  a 
subsequent  chapter  of  this  work  on  that  subject.53  It  is  the 
practice  for  the  surveyor-general  to  lay  out  a  fractional  sec- 
tion so  as  to  give  one  or  more  full  one  hundred  and  sixty  acres, 
if  possible,  but  he  should  not  make  an  arbitrary  division.54 
However,  some  discretion  is  always  allowed  that  officer,  and 
he  is  not  obliged  to  lay  off  a  full  quarter  or  half-quarter  sec- 
tion, though  the  fractional  section  is  capable  of  so  being  laid 
out.55  It  is  expected  that  he  will  bring  to  bear  his  best  judg- 
ment under  any  circumstances,  still  with  a  view  of  the  general 
good. 

§  63.     Variance  in  form  of  surveys  on  rivers,  etc. — "When- 

51Ante  §  56.  54Brown    v.    Clements,    3    How. 

52Rev.  Stat.  §  2397;  Comp.  Stat.    (U.  S.)  650,  n  L.  ed.  767. 

§  4805.  65Gazzan    v.    Phillips,    20    How. 

ch.  8.  4U.  S.)  372,  15  L.  ed.  958. 


51  SURVEYS   AND  SURVEYORS  §    64 

ever,  in  the  opinion  of  the  President,"  continues  the  act,  "a 
departure  from  the  ordinary  method,  of  surveying  any  land 
on  any  river,  lake,  bayou,  or  water  course,  would  promote  the 
public  interest,  he  may  direct  the  surveyor-general  in  whose 
district  such  land  is  situated,  and  where  the  change  is  intended 
to  be  made,  to  cause  the  lands  thus  situated  to  be  surveyed 
in  tracts  of  two  acres  in  width,  fronting  on  any  river,  bayou, 
lake  or  water  course,  and  running  back  the  depth  of  forty 
acres;  which  tracts  of  land  so  surveyed  shall  be  offered  for 
sale  entire,  instead  of  in  half  quarter-sections,  and  in  the 
usual  manner  and  on  the  same  terms  in  all  respects  as  the  other 
public  lands  of  the  United  States."58 

As  to  the  control  of  sovereign  rights  in  navigable  streams 
it  is  the  policy  of  the  federal  government  to  leave  such  control 
to  the  state  where  located.57  Still  as  to  the  improvements  of 
such  streams  and  the  right  to  build  bridges  over  the  same  and 
the  right  to  build  dams  across  the  same  they  are  subject  to  the 
federal  government's  direction. 

§  64.  Departure  from  rectangular  system  in  California. — 
With  reference  to  departures  from  the  rectangular  system  of 
surveys  in  California  the  act  provides  that:  "Whenever,  in 
the  opinion  of  the  secretary  of  the  interior,  a  departure  from 
the  rectangular  mode  of  surveying  and  subdividing  the  public 
lands  in  California  would  promote  the  public  interest,  he  may 
direct  such  change  to  be  made  in  the  mode  of  surveying  and 
designating  such  lands  as  he  deems  proper,  with  reference  to 
the  existence  of  mountains,  mineral  deposits,  and  the  advan- 
tages derived  from  timber  and  water  privileges;  but  such 
land  shall  not  be  surveyed  into  less  than  one  hundred  and 
sixty  acres,  or  subdivided  into  less  than  forty  acres."58 

In  making  a  resurvey  of  any  such  tracts  of  land  it  will  be 

56Rev.  Stat.  §  2407;  Comp.  Stat.       58Rev.  Stat.  §  2410;  Comp.  Stat. 
4819.  §  4822. 

57Shively  v.   Bowlby,   152   U.   S. 
i,  38  L.   ed.  331. 


§    65  SURVEYING   AND    BOUNDARIES  52 

necessary  for  the  local  surveyor  to  have  a  copy  of  the  special 
instructions  so  given.  It  has  been  held  that  this  statute  does 
not  apply  to  grants  of  land  from  Mexico  to  the  city  of  San 
Francisco.59 

§  65.  Extension  of  public  surveys  over  mineral  land. — 
With  reference  to  the  surveys  of  certain  mineral  lands  and  of 
certain  other  claims  the  act  provides:  "There  shall  be  no 
further  geological  survey  by  the  government,  unless  hereafter 
authorized  by  law.  The  public  surveys  shall  extend  over  all 
mineral  lands ;  and  all  subdividing  of  surveyed  lands  into  lots 
less  than  one  hundred  and  sixty  acres  may  be  done  by  county 
and  local  surveyors  at  the  expense  of  claimants;  but  nothing 
in  this  section  contained  shall  require  the  survey  of  waste  or 
useless  lands."60 

§  66.  When  survey  may  be  had  by  settlers  of  township.— 
Under  certain  conditions  settlers  may  have  certain  tracts  of 
land  surveyed  upon  application  and  the  deposit  of  the  expense 
of  such  survey,  and  we  find :  "When  the  settlers  of  any  town- 
ship, not  mineral  or  reserved  by  the  government,  or  persons  or 
associations  lawfully  possessed  of  coal  lands  and  otherwise 
qualified  to  make  entry  thereof,  or  when  the  owners  or 
grantees  of  public  lands  of  the  United  States,  under  any  law 
thereof,  desire  a  survey  made  of  the  same  under  the  authority 
of  the  surveyor-general  and  shall  file  an  application  therefor 
in  writing,  and  shall  deposit  in  a  proper  United  States  deposi- 
tory to  the  credit  of  the  United  States  a  sum  sufficient  to  pay 
for  such  survey,  together  with  all  expenditures  incident  there- 
to, without  cost  or  claim  for  indemnity  on  the  United  States,  it 
shall  be  lawful  for  the  surveyor-general,  under  such  instruc- 
tions as  may  be  given  him  by  the  commissioner  of  the  general 
land  office,  and  in  accordance  with  law,  to  survey  such  town- 
ship or  such  public  lands  owned  by  said  grantees  of  the  gov- 
ernment, and  make  return  thereof  to  the  general  and  proper 

59  Burk  v.  Howe,  171  Cal.  242,       «°Rev.  Stat  §  2406;  Comp.  Stat. 
152  Par.  434.  §  4818. 


53 


SURVEYS  AND  SURVEYORS  §    68 


land  office ;  provided,  that  no  application  shall  be  granted  un- 
less the  township  so  proposed  to  be  surveyed  is  within  the 
range  of  the  regular  progress  of  the  public  surveys  embraced 
by  existing  standard  lines  or  bases  for  township  and  subdi- 
visional  surveys/'61 

Evidently  the  lands  to  which  reference  is  made  herein  are 
omitted  lands.  This  may  happen  in  the  case  of  swamp  lands, 
later  reclaimed,  or  of  islands,  not  in  the  first  instance  surveyed 
and  in  other  ways.  It  has  been  held  to  give  government  juris- 
diction to  make  surveys  of  such  omitted  lands  (islands  in  this 
case)  that  there  must  have  been  such  omitted  islands,  and  the 
land  must  not  have  been  conveyed  by  the  government  prior 
thereto.62  Questions  have  frequently  arisen  as  to  whether  or 
not  an  island  adjacent  to  a  conveyed  shore  should  be  con- 
sidered subject  to  survey  under  this  provision  or  whether  the 
island  passed  to  the  owner  of  the  shore. 

§  67.  Deposit  for  expenses  deemed  an  appropriation. — It 
was  quite  natural  that  the  government  should  be  protected  as 
to  the  expenses  of  the  survey  made  under  the  provisions  re- 
ferred to  in  the  next  section  above,  and  we  find:  "The  de- 
posit of  money  in  a  proper  United  States  depository,  under 
the  provisions  of  the  preceding  section,  shall  be  deemed  an 
appropriation  of  the  sum  so  deposited  to  be  placed  to  the  credit 
of  the  proper  appropriations  for  the  surveying  service;  but 
any  excesses  in  such  sums  over  and  above  the  actual  cost  of 
the  surveys,  comprising  all  expenses  incident  thereto,  for  which 
they  were  severally  deposited,  shall  be  repaid  to  the  depositors 
respectively."63 

§  68.  Deposits  made  by  settlers  to  apply  on  lands. — If, 
after  such  survey  be  made,  the  party  applying  for  a  survey  of 
such  lands,  purchases  said  lands  from  the  United  States,  then 

61Rev.  Stat.  §  2401 ;  Comp.  Stat.   Boom  Co,  62  Mich.  626,  30  N.  W. 
§  4811.  469. 

62Webber    v.     Pere     Marquette       63Rev.  Stat  §  2402;  Comp.  Stat. 

§  4812. 


§    69  SURVEYING  AND  BOUNDARIES  54 

the  sums  so  deposited  may  be  used  in  part  payment  for  said 
lands,  and  we  find  this  provision:  "Where  settlers,  or  own- 
ers or  grantees  of  public  lands  make  deposits  in  accordance 
with  the  provisions  of  section  2401,  as  hereby  amended,  cer- 
tificates shall  be  issued  for  such  deposits  which  may  be  used 
by  settlers  in  part  payment  for  the  lands  settled  upon  by  them, 
the  survey  of  which  is  paid  for,  out  of  such  deposits,  or  said 
certificates  may  be  assigned  by  indorsement  and  may  be  re- 
ceived by  the  government  in  payment  for  any  public  lands  of 
the  United  States  in  the  states  where  the  surveys  were  made, 
entered  or  to  be  entered  under  the  laws  thereof."64 

§  69.  Modification  of  lines  in  Nevada. — Owing  to  local 
conditions  in  the  state  of  Nevada  special  provisions  have  been 
made  for  the  survey  of  certain  lands  therein  and  we  find :  "In 
extending  the  surveys  of  the  public  lands  in  the  state  of  Nevada 
the  secretary  of  the  interior  may  vary  the  lines  of  the  subdi- 
visions from  a  rectangular  form,  to  suit  the  circumstances  of 
the  country."65 

§  70.  Settlers'  rights  in  unsurveyed  lands. — It  is  the  policy 
of  the  government  to  protect  settlers  on  lands  not  yet  sur- 
veyed, and  after  a  survey  thereof,  to  make  grants  of  such  lands 
to  them  on  compliance  with  the  laws,  even  as  to  the  school 
lands,  and  we  find :  "Where  settlements  with  a  view  to  pre- 
emption or  homestead  have  been,  or  shall  hereafter  be  made, 
before  the  survey  of  the  lands  in  the  field,  which  are  found  to 
have  been  made  on  sections  16  or  36,  those  sections  shall  be 
subject  to  the  claims  of  such  settlers,  etc."66 

6*Rev.  Stat.  §  2402;  Comp.  Stat       66Rev.  Stat.  §  2275;  Comp.  Stat. 
§   4812.  §  4860. 

65Rev.  Stat.  §  2408;  Comp.  StaL 
§  4820. 


CHAPTER  IV 

SOME  GENERAL  OBSERVATIONS 

Sec.  Sec. 

72.     Generally.  80.     Certainty  of   evidence. 

72.  Applicable    to    all    systems    of    81.     Searching  for  obliterated  cor- 

survey.  ners. 

73.  Magnetic  needle  not  now  used.    82.     Field-notes    and    records. 

74.  Government  will  not  issue  in-    83.     Harmonizing  calls. 

structions  to  local  surveyors.    84.     Integrity  of  surveyor. 

75.  Line-trees.  85.     Originality. 

76.  Adjusting      instruments      and    86.     Importance  of    instructions   to 

testing  chain  or  tape.  original   surveyors. 

77.  Swearing  in  assistants.  87.    Double  corners. 

78.  Proportional      measure-    88.     Old  isolated  surveys. 

ments.  89.    Tests  by  retracing  lines  in  im- 

79.  Government  corners  preserved  mediate  vicinity. 

by  landowners. 

§  71.  Generally. — In  this  chapter  the  author  gives  some 
general  observations,  and  in  so  doing,  desires  to  emphasize 
some  commonplace  and  simple  ideas,  and  thus  impress  the 
local  surveyor  with  their  importance.  We  are  all  prone  to 
overlook  small  things  and  fail  to  give  them  due  weight.  A 
surveyor  finds  it  necessary  to  relocate  a  lost  or  obliterated 
corner.  He  should  not  fail  to  carefully  examine  the  field- 
notes  of  the  original  survey,  if  in  existence.  By  such  examina- 
tion he  may  find  noted  therein  a  line-tree,  the  crossing  of  a 
small  creek  or  stream,  the  approach  to  an  abrupt  ledge,  or  the 
sudden  entry  into  a  swamp,  or  other  natural  feature,  as  the 
line  approaches  the  now  lost  or  obliterated  corner.  The  dis- 
tances to  the  intersections  of  the  various  natural  features, 
along  the  line,  should  be,  and  probably  will  be,  found  noted 
in  the  field-notes.  It  will  at  once  be  seen  that  the  surveyor 
can  use  these  natural  features  as  permanent  monuments  of  the 
first  order  in  relocating  the  lost  corner.  True,  they  may  be 
some  distance  from  such  corner  but  they  are,  in  a  way,  cer- 
tain and  immovable  and  will  furnish  the  surveyor  at  least  one 

55 


§    72  SURVEYING  AND  BOUNDARIES  56 

initial  point  from  which  to  begin  his  relocation  work.  He 
will  continue  in  the  same  research  on  the  line  beyond  the  lost 
corner  and  find  another  initial  point  between  which  and  the 
former  he  may  measure  and,  by  proportion,  relocate  the  lost 
corner  under  the  rules  prescribed. 

Before  placing  too  much  reliance  on  the  natural  features, 
such  as  streams,  ledges,  rocks,  swamps,  or  otherwise,  the 
surveyor  should  carefully  inspect  the  surroundings  and  make 
certain  such  features  as  are  in  substantially  the  same  position  as 
they  were  when  the  original  survey  was  made.  So,  also,  he 
must  be  sure  that  the  line  run  by  him  along  which  the  measure- 
ments are  being  taken  is  in  practically  the  same  place  as  the 
original  line.  His  observations  should  be  noted  in  his  record 
of  the  survey.  These  precautions  are  fruitful  of  evidence  of 
the  accuracy  of  the  work  and,  with  other  evidence,  will  con- 
firm it. 

§  72.  Applicable  to  all  systems  of  survey. — What  is  said  in 
this  chapter  is  applicable  to  all  systems  of  survey,  whether  the 
rectangular  or  the  old  haphazard  metes  and  bounds  system 
used  in  the  surveys  of  much  of  the  lands  in  the  original  thir- 
teen states  since  they  do  not  necessarily  refer  to  any  system 
and  are  so  general  that  they  may  be  found  useful  in  all  sur- 
veys. The  great  difficulty  in  retracing  the  lines  of  ancient 
surveys  under  the  metes  and  bounds  system  is  apparent  to 
everyone.  The  surveyor  is  first  confronted  with  not  even  a 
known  initial  point,  frequently,  from  which  to  begin  work, 
to  say  nothing  about  a  second  initial  point.  Then  more  than 
likely  the  original  survey  was  full  of  errors  in  courses  and 
distances  and  in  taking  and  recording  notes  of  the  survey. 
How  important,  then,  is  it  that  the  surveyor  search  out  every 
particle  of  evidence  bearing  on  the  location  of  the  lost  line, 
or  lost  corner  to  the  end  that  it  may  be  relocated  in  its  original 
position. 

He  will  regard  ancient  fences,  old  stone  walls  reputed  to 
have  been  built  on  the  line  sought,  since  they  are  recognized 


57  SOME  GENERAL  OBSERVATIONS  §    75 

as  monuments  of  the  position  of  the  original  line  and  more 
reliable  than  courses  and  distances.  He  should  gather  proof 
of  the  original  locations  of  such  ancient  fences,  walls,  or  other 
objects,  and  may,  and  should,  take  the  statements  of  old  people 
who  have  known  the  line  many  years  and  may  receive  the 
declarations  of  persons  long  since  deceased,  as  to  the  location 
of  such  corner  or  line,  who  were  in  a  position  to  know  the  loca- 
tion thereof,  and  which  declarations  were  made  before  any 
controversy  arose.  Similarly  declarations  against  the  inter- 
ests of  the  party  making  may,  and  should,  be  taken.1 

§  73.  Magnetic  needle  not  now  used.  —  The  rules  laid  down 
by  the  commissioner  of  the  general  land  office  in  1902,  and 
since  in  force,  prescribe  that  all  government  surveys  shall  be 
made  "with  instruments  provided  with  the  accessories  neces- 
sary to  determine  a  direction  with  reference  to  a  true  meridian 
independently  of  the  magnetic  needle."2  The  instrument  used 
for  such  purpose  is  the  solar  compass  and  lines  run  by  such 
instrument  are  astronomically  run.  Such  instrument  is  not 
affected  by  surrounding  conditions,  as  is  the  magnetic  needle. 

§  74.  Government  will  not  issue  instructions  to  local  sur- 
veyors. —  Disputes  arising  over  uncertain  or  erroneous  loca- 
tions of  corners,  originally  established  by  the  government,  are 
to  be  settled  by  the  proper  local  authorities  and  the  govern- 
ment will  not  issue  instructions  to  local  surveyors.  The  local 
surveyor,  however,  may  obtain  circulars  from  the  government 
which  will  aid  him  materially  in  retracing  lost  or  obliterated 
corners  or  retracing  lost  or  obliterated  lines.  The  circular  of 
1909,  is  substantially  given  in  this  work  under  the  heading, 
"Lost  or  Obliterated  Corners  and  Subdivision  of  Sections."3 

§  75.  Line-trees.  —  In  a  timbered  country  the  surveyor  will 
find  line-trees,  which,  after  verification,  he  can  use  to  great 
advantage  in  relocating  old  lines  or  lost  or  obliterated  corners. 


on  Indirect  and  Collateral       3Manual   (1902)    §  398;  Post  ch. 

Evidence,  132-3.  XV. 

2Manual,  (1902)   §§  32-391. 


§    y6  SURVEYING   AND   BOUNDARIES  58 

This  important  evidence  should  not  be  overlooked.  The  nearer 
the  line-tree  to  the  lost  or  obliterated  corner,  the  more  valu- 
able as  an  aid  in  such  relocation.  Measurements  for  such  pur- 
pose, of  course,  must  be  proportional  to  the  original  survey. 
Trees  so  intersected  by  the  line  are  marked  by  two  chops  or 
notches  cut  on  the  sides  facing  the  line  without  any  other 
marks.4 

§  76.  Adjusting  instruments  and  testing  chain  or  tape. — 
The  surveyor  should  frequently  adjust  and  test  his  instrument 
and  make  a  record  thereof.  If  he  be  compelled  to  rely  on  the 
needle  largely  he  should  have  a  known  true  north  and  south 
line  for  such  testing.  He  should  use  his  instrument  both 
direct  and  reverse  in  making  the  test.  So,  also,  when  he  is 
retracing  lines,  he  should  test  his  instrument  with  reference  to 
other  lines  in  the  vicinity,  run  by  the  same  government  sur- 
veyor, at  the  same  time.  The  testing  of  the  chain  or  tape  is 
of  prime  importance  and  should  be  made  frequently.  If  found 
to  be  too  long  it  should  be  shortened  to  the  exact  length;  if 
too  short,  it  should  be  lengthened  accordingly.  A  record 
should  always  be  made  of  these  testings  and  of  the  results.  Of 
course,  by  a  proportional  measurement  the  same  result  may 
be  obtained  even  with  a  tape  too  long  or  too  short  but  it  will 
be  found  more  satisfactory  to  use  a  tape  or  chain  of  the  cor- 
rect length  in  any  event. 

§  77.  Swearing  in  assistants. — Before  entering  upon  a  sur- 
vey the  chainmen,  flagmen  and  other  assistants  should  be 
sworn  to  faithfully  perform  their  duties  according  to  law  and 
a  record  thereof  made.  In  litigated  matters  this  is  quite  essen- 
tial. It  adds  to  the  weight  to  be  given  to  their  testimony. 
Moreover,  it  lends  dignity  to  the  business.  In  some  localities 
it  is  imperative. 

§  78.  Proportional  measurements. — It  is  seldom  that  the 
recent  measurement  of  a  line  will  agree  with  the  original 

4Manual    (1902)    §  42;    Post  ch. 
XV. 


59  SOME  GENERAL  OBSERVATIONS  §    80 

measurement,  even  though  the  chain  or  tape  be  adjusted  to  the 
correct  length.  Hence,  in  retracing  a  lost  or  obliterated  line 
or  re-establishing  a  lost  or  obliterated  corner,  the  surveyor 
should  always  fix  the  line  or  corner  by  proportional  measure- 
ments. In  no  other  way  can  he  approach  accuracy.  This  is 
the  universal  instruction  of  the  land  department.  Moreover, 
it  is  a  universal  principle  laid  down  by  the  courts  in  decisions. 
If  this  practice  be  followed  carefully  the  length  of  the  chain 
or  tape  would  be  immaterial. 

§  79.  Government  corners  preserved  by  landowners. — A 
government  corner,  which  has  been  preserved  by  acts  of  land- 
owners, or  which  can  be  established  from  the  memory  of  those 
who  knew  and  can  recollect  its  location,  is  not  a  lost  corner. 
True,  the  surveyor  can  only  fix  the  location  of  such  corner  by 
extrinsic  evidence.  Such  evidence  may  consist  of  the  declara- 
tions of  persons,  since  deceased,  who  may  have  known  the 
place  of  the  original  location ;  or  it  may  consist  of  the  evidence 
of  persons,  who  may  have  built  fences  along  the  original  line 
or  to  the  original  corner  and  which  fences  are  still  standing, 
or  if  destroyed,  that  new  ones  have  been  built  in  the  same 
place  as  the  original  fence.5 

§  80.  Certainty  of  evidence. — The  surveyor  should  only  ac- 
cept extrinsic  evidence  of  the  location  of  an  obliterated  line 
or  corner  when  the  same  can  not  be  fixed  by  finding  the  post 
originally  set,  or  by  a  reference  to  bearing  trees,  still  standing, 
or  stumps  of  such  trees,  or  similar  reliable  data.  Should  he 
resort  to  extrinsic  evidence  he  must  be  certain  it  is  reliable, 
and,  if  it  is  sought  to  fix  the  line  or  corner  by  showing  the 
location  of  an  ancient  fence,  the  surveyor  must  be  certain  such 
fence  was,  or  fences  were,  built  on  the  true  line  or  to  the  true 
corner  and  so  known  to  be  by  the  person  giving  testimony.  If 
it  is  sought  to  show  the  location  of  the  true  line  or  corner  by 
the  declarations  of  a  person  since  deceased,  the  surveyor  must 

5Post  ch.  XVI. 


§   8 1  SURVEYING  AND  BOUNDARIES  60 

make  certain  that  such  declarations  were  made  by  a  person  in 
a  position  to  know  the  location  of  the  original  line  or  corner, 
and  were  either  against  his  interest  at  the  time  or  such  person 
was  a  public  officer  charged  with  some  duty  in  the  matter, 
such  as  a  surveyor  who  had,  prior  thereto,  located  such  line  or 
corner  and  knew  the  true  location  thereof.6 

§  81.  Searching  for  obliterated  corners. — Many  surveyors 
neglect  to  make  a  thorough  search  for  evidence  of  the  location 
of  the  original  corner.  This  should  not  be  permitted.  Fre- 
quently unmistakable  evidence  of  the  location  of  the  original 
corner  can  be  found  by  a  careful  use  of  the  spade  in  the  place 
where  the  corner  is  supposed  to  be.  Those  who  make  the 
search  should  do  so  with  great  care.  The  surface  of  the 
ground  should  be  shaved  off  for  a  considerable  space  and  those 
doing  the  work  should  keep  a  sharp  lookout  for  decayed  parts 
of  the  original  post  as  the  soil  is  shaved  down.  It  is  not 
infrequent  that  the  location  of  the  corner  post  is  traced  by  a 
slight  discoloration  of  the  soil  at  the  particular  point  where 
the  post  was  planted.  Upon  making  such  discovery  the  sur- 
veyor will  continue  excavating  for  some  distance  and  trace  the 
location  downward  by  following  the  discoloration.  The  point 
so  located  by  him  should  be  tested  and  proved  by  other  means 
and  by  a  proportional  measurement  to  other  points. 

§  82.  Field-notes  and  records. — In  all  cases  the  surveyor 
should  keep  a  full  record  of  all  notes  of  surveys  made.  All 
corners  should  be  marked  by  a  permanent  post,  or  better  still 
a  dressed  stone  or  iron  rod  securely  set  at  the  exact  corner. 
The  location  of  the  corner  should  be  marked,  where  possible, 
by  bearing  trees  or  other  natural  object.  The  notes  should 
indicate  the  material  used  in  marking  the  corner;  also  the 
bearings,  distances  to  trees  or  other  objects,  the  size  and  kind 
of  tree  or  other  object,  and  the  markings.  All  line-trees 
should  be  marked  by  a  blaze  on  each  side  of  the  tree,  facing 

'Post  ch.  XVI. 


6 1  SOME  GENERAL  OBSERVATIONS  §    84 

the  line.  The  size  and  kind  of  tree  should  be  noted ;  also  its 
distance  from  the  point  on  the  measured  line  to  the  adjacent 
corners.  Streams,  lakes,  ponds  and  other  natural  features 
should  be  noted  with  distances  from  the  adjacent  corners:; 
width  of  stream  or  pond,  and  in  case  of  a  stream  its  course 
should  be  given.  Names  of  streams  or  lakes ;  also  hills  should 
be  noted.  By  a  careful  observation  of  these  rules  future  sur- 
veys can  be  made  with  practical  accuracy  and  certainty. 

§  83.  Harmonizing  calls. — If  possible,  the  surveyor  in  re- 
tracing an  obliterated  line,  should  harmonize  all  the  calls. 
Frequently  he  will  not  be  able  to  do  this  and  it  may  be  neces- 
sary to  regard  some  of  the  calls  and  disregard  others.  Us- 
ually fixed  monuments  control  courses  and  distances,  though 
instances  are  sighted  in  this  work  where  the  court,  owing  to 
an  extraordinary  situation,  preferred  the  course  and  distance 
over  the  fixed  monuments.7  The  chief  lines  of  a  survey,  such 
as  a  township  or  range  line,  will  be  preferred  over  section 
lines  closing  thereon.8  This  is  on  the  theory  that  greater 
care  was  used  in  running  the  chief  lines ;  also  that  closing  lines 
are  not  generally  run  with  that  degree  of  accuracy  used  in 
running  other  lines.  In  all  such  cases  great  care  should  be 
exercised,  the  work  should  be  tested  and  the  surveyor  should 
be  certain  of  his  ground.  All  of  the  facts  should  be  carefully 
noted  in  the  record. 

§  84.  Integrity  of  surveyor.— The  surveyor  should  at  all 
times  keep  his  skirts  clear  and  not  be  influenced  one  way  or 
another  in  the  face  of  facts  which  convince  him  that  a  certain 
course  is  wrong.  He  should  be  as  free  from  prejudice  or 
influence  favorable  to  one  or  the  other  party,  as  a  judge  on  the 
bench  or  a  juror  in  the  box.  His  skill,  judgment  and  advice 
should  always  be  for  the  right.  He  should  establish  corners 
and  run  lines  according  to  the  data  or  according  to  extrinsic 

7Post  ch.  XV;  Post  ch.  XIX. 
8Post  ch.  XV. 


§    85  SURVEYING   AND   BOUNDARIES  62 

evidence  gathered  by  him.  His  inquiry  should  be:  What 
is  the  right  of  the  matter  under  all  of  the  circumstances? 
Practically  he  is  an  arbiter  between  the  parties.  He  should 
not  destroy  any  evidence  of  the  location  of  corners  or  lines, 
or  cover  up  anything  which  may  lead  to  a  correct  survey  of 
the  line  in  question.  When  he  so  acts,  his  services  will  be 
sought  for  and  he  will  be  honored  greatly  in  the  localities 
where  he  may  have  been  engaged. 

§  85.  Originality. — The  surveyor  will  have  frequent  oppor- 
tunity to  exercise  his  original  ideas,  extricating  himself  from 
tight  places.  No  one  can  tell  him  in  advance  what  to  do  in 
the  hundreds  of  difficult  and  perplexing  problems  that  arise  in 
every  day  practice.  He  must  carefully  consider  all  of  the 
surrounding  circumstances  and  bring  into  play  his  accu- 
mulated knowledge,  applying  that  knowledge  and  past  expe- 
riences to  the  question.  Those,  with  little  or  no  initiative, 
will  fail,  but  he  who  can  apply  old  principles  to  new  problems 
will  succeed.  This  is  not  only  true  of  engineering  but  also  of 
land  surveying,  and  especially  in  the  tracing  of  lost  or  oblit- 
erated lines  or  re-establishing  lost  corners.  Questions  which 
call  for  large  common  sense,  good  judgment  and  originality, 
and  to  which  no  hard  and  fast  rule  can  apply  will  arise  daily. 
Here  is  the  real  surveyor's  opportunity. 

§  86.  Importance  of  instructions  to  original  surveyors. — 
The  importance  of  a  knowledge  of  special  or  other  instructions 
which  may  have  been  given  by  the  surveyor-general  to  his 
deputies  prior  to  the  original  survey  can  not  be  emphasized  too 
strongly.  No  surveyor  should  attempt  to  make  a  resurvey 
of  a  section  without  full  government  notes  and  be  in  posses- 
sion of  such  instructions.  This  is  especially  necessary  in  re- 
establishing lost  or  obliterated  corners  or  retracing  lost  or 
obliterated  lines,  in  as  much  as,  in  the  early  surveys,  the  in- 
structions were  not  always  uniform,  and,  in  some  cases  were 
erroneous.  Furthermore  recent  instructions  are  much  more 


63  SOME  GENERAL  OBSERVATIONS  §    88 

exacting  than  those  issued  in  early  surveys.  Various  rules 
as  to  standard  parallels,  double  and  triple  corners  have  been 
promulgated  from  time  to  time.  A  full  knowledge  thereof 
by  the  surveyor  will  enable  him  to  approach  accuracy,  where- 
as, without  such  knowledge  he  can  not  hope  to  do  so.  For 
instance,  when  by  reason  of  impassable  objects  or  other  rea- 
sons the  south  boundary  of  a  township  could  not  be  estab- 
lished, the  "Instructions  for  the  Survey  of  Public  Lands"  pro- 
vide that  the  lines  of  subdivisions  of  the  townships  shall  be 
run  from  north  to  south,  thus  throwing  the  excess  or  de- 
ficiency on  the  west  and  south  sides  of  a  township.9  Similarly 
the  division  lines  may  be  required  from  west  to  east,  where 
the  east  boundary  of  a  township  can  not  be  established,  thus 
throwing  the  excess  or  deficiency  on  the  north  and  east  sides 
of  the  township.10  How  important,  that  the  local  surveyor 
should  possess  this  information,  will  be  apparent. 

§  87.  Double  corners. — Prior  to  1836,  section  lines,  under 
instructions  of  the  surveyor-general,  were  required  to  meet 
the  section  corners  on  town  and  range  lines  of  the  south  and 
east  sides  of  a  township  but  not  on  the  north  and  west  sides 
thereof.  This  rule  produced  what  is  known  as  "double  cor- 
ners," on  all  boundaries  of  townships.  This  practice  was  fol- 
lowed in  the  execution  of  some  surveys  as  late  as  the  year 
1854,  and  possibly  later.  Other  instances  are  mentioned  in 
this  work  where  triple  corners  were  established.  Under 
present  instructions  "double  corners"  are  found,  as  a  general 
rule,  only  on  base  and  correction  lines. 

§  88.  Old  isolated  surveys. — The  surveyor-general  has  fre- 
quently found  it  necessary  to  order  surveys  of  isolated  tracts 
of  land,  situated  far  from  other  surveyed  lands.  Subsequently 
the  intervening  and  surrounding  lands  are  ordered  surveyed 
into  township  and  sections.  It  will  be  evident,  that,  in  all 

^Manual  (1902)   §  149. 
10Manual   (1902)    §  149. 


§    89  SURVEYING  AND  BOUNDARIES  64 

probability,  all  of  the  townships  bounding  on  such  isolated 
surveys  will  be  fractional  townships,  and  will  be  most  irregu- 
lar in  their  boundaries.  Likewise  the  exterior  sections  of 
such  townships  will  be  fractional  and  irregular  in  form.  The 
land  department  has  formulated  rules  for  making  such  sur- 
veys, and  the  local  surveyor  should  become  familiar  with  such 
rules  before  attempting  a  resurvey  of  such  townships  or  any 
part  thereof.11  He  should  possess  full  government  notes  of 
both  surveys  in  order  to  distinguish  the  particular  corner 
desired.  Fig.  17. 

§  89.  Tests  by  retracing  lines  in  immediate  vicinity. — The 
rules  promulgated  by  the  surveyor-general  to  his  deputies 
about  to  subdivide  a  township  into  sections,  requires  them, 
first  of  all,  to  carefully  retrace  the  south  and  east  sides  of 
section  36,  in  the  township  to  be  subdivided,  and  adjust  his 
instrument  and  chains  or  tapes  with  reference  to  those  lines, 
to  the  end  that  he  may  the  more  accurately  run  the  subdi- 
vision lines.12  If  this  be  thought  necessary  in  making  the 
initial  survey,  how  much  more  so  will  it  be  necessary  for  the 
local  surveyor  to  carefully  retrace  at  least  one  northerly  and 
one  easterly  line  in  the  vicinity,  run  in  making  the  original 
survey.  In  this  retracing  the  surveyor  should  adjust  his  instru- 
ment and  chains  and  tapes  to  correspond  with  the  former 
survey.  This  will  enable  him  to  run  the  desired  lines  approx- 
imately accurate.  He  will  not  then  be  working  wholly  in  the 
dark. 

"Manual     (1902)      §§     265-273;       12Post  ch.  VI. 
Manual  (1919)  §  224;  Post  ch.  VI. 


CHAPTER  V 

BASE    LINES PRINCIPAL    MERIDIANS TOWNSHIPS 

Sec.  Sec. 

90.  Generally.  97.  Positions    of    base    lines    and 

91.  Initial  points  of  survey.  principal  meridians. 

92.  The  base  line.  98.  The  sixteen  township  blocks. 

93.  Principal   meridian.  99.  Forming  townships. 

94.  Standard    parallels.  100.  Double    corners    on    standard 

95.  Guide   meridians.  parallels. 

96.  Township  exteriors.  101.  Dividing    blocks    into    town- 

ships south  of  the  base  line. 

§  90.  Generally. — All  surveys  must  have  initial  points.  The 
rectangular  system  is  no  exception  to  the  rule.  Practically  all 
of  the  lands  in  the  thirteen  original  states  were  surveyed  at 
one  time  or  another  but  without  regard  to  any  system  or  uni- 
formity. Frequently  large  tracts  of  land  were  granted  by  the 
British  government  in  an  early  day  to  prominent  individuals. 
These  tracts  were  surveyed  in  very  irregular  pieces,  having 
regard  to  water  courses,  lakes,  mountains  or  other  natural 
features  of  the  country.  Of  course  an  initial  point  was  estab- 
lished, so  to  speak,  for  each  tract,  from  which  the  survey  for 
that  tract  was  made.  No  regular  system  of  keeping  notes 
was  followed.  Frequently  they  were  never  made  of  record 
and  were  left  with  the  owner  of  the  tract  or  some  private 
surveyor  and  ultimately  lost.  As  a  result,  in  many  localities 
in  those  states,  it  is  practically  impossible  to  procure  data 
from  which  original  lines  and  corners  may  be  re-established.1 

Furthermore  the  individual  grants  were  surveyed  without 
regard  to  other  grants  lying  adjacent  thereto.  Hence,  as  a 
matter  of  fact,  there  were  as  many  systems  of  surveys  as 

iPost  ch.  XXVI. 

65 


§    91  SURVEYING   AND   BOUNDARIES  66 

there  were  grants.  This  is  the  case  with  the  New  England 
states,  New  York,  Pennsylvania,  and  the  states  lying  along 
the  Atlantic  seaboard,  the  thirteen  original  states.  Efforts 
have  been  made  in  many,  if  not  all  of  those  states,  to  tie  the 
initial  points  by  triangulation  or  astronomically  so  that  such 
initial  points  may  be  of  record  and  relocated.  Those  who  are 
familiar  with  the  rectangular  system  find  it  difficult  to  under- 
stand how  the  owners  of  lands,  run  out  in  the  early  history  of 
the  country,  are  able  to  trace  their  boundaries  with  any  degree 
of  satisfaction.  In  fact,  they  can  not  so  retrace  them  generally. 

These  unsatisfactory  and  varied  systems  were  the  source  of 
much  vexatious  litigation,  and  our  great  statesmen  of  that 
early  day  evolved  the  rectangular  system  of  surveys,  and  the 
Continental  Congress  provided  for  the  survey  of  all  of  the 
public  lands  by  that  system  under  and  by  virtue  of  the  act  of 
April  26,  1785.  Under  this  system  any  tract  of  land  can  be 
readily,  and  understandingly  described  by  the  use  of  a  few 
words. 

§  91.  Initial  points  of  survey. — Under  the  rectangular  sys- 
tem of  surveys,  as  we  have  seen,  an  initial  point  from  which 
the  survey  is  to  be  made  must  first  be  fixed.2  This  point 
should  be  located  with  great  care,  and,  if  the  topography  of 
the  country  permit,  it  should  be  established  on  some  prominent 
elevation,  from  which  points  at  considerable  distances  may 
be  observed.  Permanent  monuments,  preferably  of  copper 
set  in  rock,  with  bearings  to  natural  objects,  such  as  a  rock, 
should  be  planted  at  the  point  selected  and  reference  thereto 
at  length  entered  in  the  field-notes.  The  point  so  established 
will  be  the  point  of  intersection  of  the  base  line  with  the  prin- 
cipal meridian  of  that  survey.3 

§  92.  The  base  line. — From  the  point  so  established  the  sur- 
veyor will  run  a  base  line,  using  a  solar  compass,  on  a  parallel 
of  latitude,  and  plant  permanent  monuments  thereon  every 

2Ante  §  90. 
3Ante  §  21. 


67  BASE  LINES PRINCIPAL   MERIDIANS TOWNSHIPS     §    94 

half  mile.  These  monuments  should  be  marked  according  to 
rules  laid  down  by  the  surveyor-general  for  establishing 
township,  section  and  quarter-section  corners  on  the  base  line. 
This  line  and  the  measurements  thereon  should  be  run  with 
great  care.  It  should  be  rerun  and  remeasured  in  order  to 
detect  any  mistake  in  the  work  and  reduce  to  a  minimum  any 
possible  error  in  measurement  or  astronomical  calculations.4 

The  base  line  should  be  run  on  a  true  parallel  the  entire 
width  of  the  tract  to  be  surveyed,  and,  if  possible,  along  the 
southern  boundary  of  such  tract.  The  entire  survey  is  based 
on  this  line  and  made  with  reference  thereto.  The  townships 
are  numbered  from  such  base,  north  and  south  as  the  case 
may  be.5 

§  93.  Principal  meridian. — From  the  initial  point  estab- 
lished on  the  base  line  and  referred  to  above,  the  surveyor  will 
run  the  principal  meridian,  with  a  solar  compass,  due  north 
or  south,  as  the  case  may  be,  with  great  accuracy.6  He  will 
establish  and  mark  permanent  monuments  thereon,  each  half 
mile  for  the  entire  length.  These  monuments  should  be 
marked  in  the  manner  required  by  the  government  for  mark- 
ing township,  section  and  quarter-section  corners  on  principal 
meridians.  It  is  important  that  this  line  should  be  on  a  true 
meridian  and  should  meet  the  north  pole,  if  prolonged.  The 
work  of  the  surveyor  should  be  thoroughly  tested  by  all  man- 
ner of  means  in  order  to  reduce  possible  errors  to  a  minimum. 
The  base  line,  of  course,  must  be  run  on  a  true  parallel  of 
latitude.  From  the  principal  meridian  the  ranges  are  num- 
bered east  or  west,  as  the  case  may  be,  throughout  the  survey.7 

§  94.  Standard  parallels. — Standard  parallels,  also  termed 
correction  lines,  shall  be  run  east  and  west  from  the  principal 
meridian,  at  intervals  of  twenty-four  miles  north  and  south 
of  the  base  line,  and  on  a  true  parallel  of  latitude.8  These 

4Ante  §  23.  7Manual   (1902)    §§  123-124. 

5Manual    (1902)    §§   114-122.  8Ante  §  27. 

«Ante    §    24. 


§    95  SURVEYING  AND  BOUNDARIES  68 

lines  should  be  run  with  as  great  care  as  the  base  line.  Monu- 
ments will  be  established  thereon  every  half  mile  and  marked 
in  the  same  manner  required  for  marking  township,  section 
and  quarter-section  corners.  From  the  standard  parallels, 
surveys  of  new  townships  north  or  south  thereof,  as  the  case 
may  be,  will  be  made.  In  fact,  standard  parallels  are  base 
lines  for  the  townships  lying  north  thereof.  They  counteract 
or  correct  the  convergence  of  the  meridian  and  leave  the  town- 
ships "as  near  as  may  be"  thirty-six  square  miles. 

In  many  of  the  old  surveys,  made  prior  to  1850,  these  stand- 
ard parallels  were  run  a  distance  of  thirty,  thirty-six,  and 
even  sixty  miles  apart  and  from  the  base  line.  This  fact 
should  be  taken  into  consideration  by  the  local  surveyor  in 
making  subsequent  surveys.9 

§  95.  Guide  meridians. — Guide  meridians  are  extended 
north  from  the  base  line  and  standard  parallels  at  intervals  of 
twenty-four  miles  east  and  west  from  the  principal  meridian.10 
They  are  run  in  the  same  manner  as  is  the  principal  meridian 
and  with  the  same  degree  of  accuracy.  All  monuments  must 
be  marked  and  reference  thereto  made  in  the  field-notes. 

In  certain  cases  such  guide  meridians  are  required  to  be 
run  south  from  the  base  or  correction  lines.  In  that  event 
they  will  be  initiated  at  properly  established  corners  on  such 
base  or  correction  line,  marked  as  "closing  corners."  Why 
this  should  be  done  will  be  evident. 

In  some  of  the  early  surveys,  guide  meridians  were  placed 
at  intervals  greatly  in  excess  of  24  miles.  Later,  new  guide 
meridians,  in  certain  cases,  were  run  pursuant  to  direction  of 
the  surveyor-general  and  local  names  assigned  to  such  new 
guide  meridians,  e.  g.,  "Grass  Valley  Guide  Meridian."11 

§  96.    Township  exteriors. — After  the  base  line,  principal 
meridian,  standard  parallels  and  guide  meridians  have  been 
run,  the  twenty-four  square  mile  tracts  are  surveyed  into  town- 
ships, beginning  with  those  in  the  south-western  township.12 
9Manual   (1902)   §§  125-126.  "Manual  {1902)  §§  127-128. 

10Manual   (1902)    §   130;  ante  §       "Manual  (1902)  §  130;  ante  §  25. 
26. 


69          BASE  LINES PRINCIPAL  MERIDIANS TOWNSHIPS    §    96 

The  meridional  boundaries  of  townships  have  precedence  in 
the  order  of  survey  over  the  latitudinal  boundaries.  They 
are  run  from  the  township  corners  on  the  base  or  correction 
lines,  theretofore  established,  from  south  to  north  on  true 
meridians.  Permanent  corners  are  set  every  half  mile  thereon. 

The  latitudinal  boundaries  are  run  from  township  corners 
theretofore  established  on  the  principal  or  guide  meridians 
from  east  to  west  on  random  or  trial  lines  and  corrected  back 
on  true  lines.  The  falling  of  the  random,  north  or  south  of 
the  township  corner  to  be  closed  upon,  is  carefully  measured, 
and,  with  the  resulting  true  return  course,  are  duly  recorded 
in  the  field-notes. 

If  the  random  so  run  should  intersect  the  township  line 
north  or  south  of  the  corner,  or  fall  short  of  or  overrun  the 
length  of  the  south  boundary  of  the  township  by  more  than 
three  chains  (due  allowance  being  made  for  convergence) 
said  random,  and  if  necessary,  all  of  the  exterior  boundaries 
of  the  township,  should  be  retraced  and  remeasured  to  dis- 
cover the  error. 

In  running  random  lines  from  east  to  west,  temporary 
corners  are  set  at  intervals  of  40  chains,  and  permanent  cor- 
ners established  upon  the  true  line,  corrected  back  in  accord- 
ance with  the  instructions  of  the  land  office,  thereby  throw- 
ing the  excess  or  deficiency  against  the  west  boundary  of  the 
township,  as  required  by  law. 

Whenever  practicable,  the  exterior  boundaries  of  townships 
belonging  to  the  west  range  in  a  tract  or  block  twenty-four 
miles  square,  are  first  surveyed  in  succession,  through  the 
range,  from  south  to  north;  and,  in  a  similar  manner,  the 
other  three  ranges  are  surveyed  in  regular  sequence. 

Wherever  impassable  obstacles  occur  and  the  foregoing 
rule  can  not  be  followed,  in  extending  the  south  or  north 
boundaries  of  a  township  to  the  west,  such  boundaries  are  run 
west  on  a  true  line,  allowing  for  convergency  on  the  west 
half  mile;  and  from  the  township  corner  established  at  the 


§   97  SURVEYING  AND  BOUNDARIES  70 

end  of  such  boundary,  the  west  boundary  is  run  north  or 
south  as  the  case  may  be. 

In  extending  south  or  north  boundaries  of  a  township  to 
the  east,  where  the  southeast  or  northeast  corner  can  not  be 
established  in  the  regular  way,  the  same  rule  will  be  observed, 
except  that  such  boundaries  will  be  run  east  on  a  true  line,  and 
the  east  boundary  run  north  or  south,  as  the  case  may  be. 
Allowance  for  convergency  must  be  made  when  necessary.13 

§  97.  Positions  of  base  lines  and  principal  meridians. — As 
we  have  seen,  the  rectangular  system  of  surveying  was  first 
used  in  the  survey  of  the  public  lands  of  the  United  States,  in 
the  state  of  Ohio.  The  boundary  line  between  the  states  of 
Ohio  and  Pennsylvania,  latitude  80°  32'  20"  west  of  Green- 
wich, known  as  "Ellicott's  line,"  is  the  meridian  to  which  such 
survey  was  referred.  The  township  east  of  the  Scioto,  in  the 
state  of  Ohio,  are  numbered  from  south  to  north,  commencing 
with  number  one  on  the  Ohio  river.  The  ranges  are  num- 
bered from  east  to  west,  beginning  with  number  one  on  the 
east  boundary  of  the  state,  termed  the  "First  Meridian,"  ex- 
cept in  the  tract  designated  "U.  S.  Military  Land,"  in  which 
the  townships  and  ranges  are  numbered,  respectively,  from 
the  south  and  east  boundaries  of  said  tract. 

Since  the  organization  of  the  system  of  rectangular  sur- 
veying down  to  the  year  1920,  numbered  and  locally  named 
principal  meridians  and  base  lines  have  been  established,  as 
shown  by  the  following  tabular  statement  furnished  by  the 
commissioner  of  the  general  land  office.  These  principal 
meridians  and  base  lines  may  be  found  by  examining  various 
official  state  maps;  also  by  examining  the  large  map  pub- 
lished by  the  land  office.14 

§  98.  The  sixteen  township  blocks. — We  have  seen  that 
the  first  operation  in  the  survey  of  a  considerable  tract  of 
land,  under  the  rectangular  system  of  surveys,  is  to  run  a 
principal  meridian  due  north  and  south  and  a  base  line  on  a 

"Manual   (1902)   §§  130-134.  "Manual  t  (1902)      §§     289-290; 

Manual    (IOTQ)    §  141. 


71  BASE  LINES PRINCIPAL   MERIDIANS TOWNSHIPS    §    C>8 

true  parallel  initiated  thereon.15  From  these  two  lines,  which 
are  run  with  the  greatest  care,  and  astronomically,  the  entire 
survey  is  initiated.  Guide  meridians,  initiated  from  the  base 
line,  are  run  every  twenty-four  miles  due  north.16  Standard 
parallels  or  correction  lines,  initiated  every  twenty-four  miles 
from  the  principal  meridian,  are  run  parallel  with  the  base 
line.17  It  will  be  seen  that  these  lines  form  a  tract  approx- 
imately twenty-four  miles  square.  They  are,  in  fact,  twenty- 
four  miles  on  the  west,  south  and  east  sides  thereof,  but,  owing 

MERIDIANS    AND    BASE    LINES    OF    THE   UNITED    STATES 

RECTANGULAR   SURVEYS 

Governing  Long,  of  Lat.  of 

Surveys  Wholly  Prin.  Md.  Base  Line 

or  in  Part  West  from  N.   from 

Meridians  in  States  of  Greenwich  Equator 

_|_          /         n  _j_/// 

Black  Hills  South  Dakota  104  0300  44  00  00 

Boise  Idaho  116  24  15  43  22  31 

Chickasaw  Mississippi  89  15  00  34  59  00 

Choctaw  Mississippi  , 90  14  45  31  54  40 

Cimarron  Oklahoma  103  00  00  36  30  00 

Copper  River Alaska  145  18  42  61  49  11 

Fairbanks  Alaska  147  38  33  64  51  49 

Fifth  Prin Arkansas,  Iowa,  Minnesota, 

Missouri,    North  Dakota   and 

South  Dakota  91  03  42  34  44  00 

First  Prin Ohio  84  48  50  41  00  00 

Fourth  Prin Illinois 90  28  45  40  00  30 

Fourth  Prin .Minnesota  and  Wisconsin 90  28  45  42  30  00 

Gila  and  Salt  River. .  .Arizona  112  17  25  33  22  40 

Humboldt  .California  124  08  00  40  25  12 

Huntisville  Alabama  86  34  45  35  00  00 

Indian  Oklahoma  97  14  30  34  30  00 

Louisiana  Louisiana  92  24  15  31  00  00 

Michigan  .Michigan  84  22  24  42  26  30 

Mount  Diablo California  and  Nevada 121  54  48  37  51  30 

Navajo  Arizona  and  New  Mexico 108  32  45  35  45  00 

New  Mexico  Prin Colorado  and  New  Mexico 106  53  40  34  15  25 

Principal  Montana  Ill  38  50  45  46  48 

Salt  Lake  Utah  Ill  54  00  40  46  04 

San  Bernardino California  116  5615  34  07  10 

Second  Prin Illinois  and  Indiana 86  28  00  38  28  20 

Seward  Alaska  149  21  53  60  07  26 

Sixth  Prin Colorado,  Kansas,  Nebraska, 

South  Dakota  and  Wyoming..  97  23  00  40  00  00 

St.  Helena Louisiana  91  09  15  31  00  00 

St.  Stephens Alabama  and  Mississippi 88  02  00  31  00  00 

Tallahassee  Florida  84  16  42  30  28  00 

Third  Prin Illinois  89  10  15  38  28  20 

Utah  Utah 109  57  30  40  26  20 

Ute  Colorado  108  33  20  39  06  40 

Washington  Mississippi  91  09  15  31  00  00 

Willamette  Oregon  and  Washington 122  44  20  45  31  00 

Wind  River  Wyoming  108  48  40  43  01  20 

35  Meridians  and  32  Base  Lines.  

to  the  convergency  of  the  meridians,  they  fall  short  consider- 
able of  that  distance  across  the  north  side.  This  deficiency 
differs  with  the  distance  north  or  south  of  the  equator.  The 
divergence  for  six  miles,  between  46  and  47  degrees  north 

13 Ante  §§  91-2.  17Ante  §  27. 

"Ante    §    26. 


§    99  SURVEYING  AND  BOUNDARIES  72 

latitude,  is  about  76  links.  That  is  the  north  side  of  a  town- 
ship in  that  latitude  is  about  76  links  shorter  than  the  south 
side.  The  guide  meridians  are  run  with  the  same  degree  of 
care  as  are  the  base  lines  and  principal  meridians.18 

§  99.  Forming  townships. — As  we  have  seen,  after  the 
principal  meridian  and  base  lines  have  been  run,  the  govern- 
ment surveyor  is  required  to  run  parallelograms  of  approx- 
imately twenty-four  miles  square,  having  reference  to  such 
principal  meridian  and  base  lines.  The  next  duty  of  the  sur- 
veyor is  to  run  out  such  parallelograms  into  sixteen  town- 
ships, of  approximately  six  miles  square.  To  do  this  the 
surveyor  begins  in  the  southwest  township  of  the  tract  and 
the  southeast  corner  of  the  township  to  be  run  out.19  Refer- 
ring to  Fig.  8,  the  surveyor  will  locate  the  township  corner  at 
the  southeast  corner  of  such  township  at  "a,"  as  previously 
established.  He  should  test  and  adjust  his  instrument  and 
chain  by  retracing  three  lines  run  in  the  initial  survey  of  base 
lines  standard  parallels,  and  guide  meridians.  He  will  then 
run  due  north  six  miles,  planting  corners  on  such  line  at  each 
half  mile.  At  "b"  he  will  establish  the  northeast  corner  of 
the  first  township — the  proper  township  corner,  and  per- 
manently mark  it.  He  will  then  run  a  random  line  from 
"b"  to  "c,"  correct  back,  plant  corners  each  half  mile  on  the 
true  line,  until  he  reaches  the  township  corner  at  "d,"  which 
of  course,  is  the  same  as  "b."  From  "d"  he  will  run  due  north, 
and  plant  corners  each  half  mile  until  he  reaches  "e."  He  will 
then  run  a  random  line  from  "e"  to  "f,"  correct  back  and  es- 
tablish corners  each  half  mile  on  the  true  line.  He  will  con- 
tinue in  like  manner  until  he  reaches  the  point  "k"  on  the  first 
standard  parallel  north.20  Any  excess  or  deficiency  should  be 
thrown  on  the  last  half  mile,  thus  making  the  last  quarter- 
corner  40  chains  north  of  the  last  interior  section  corner.  In 
fact  all  closing  lines  on  the  north  or  west  sides  of  the  township 

18Manual  (1902)  §  127. 
19Manual  (1902)  §  133. 
20Manual  (1902)  §§  130-132. 


73  BASE  LINES PRINCIPAL   MERIDIANS TOWNSHIPS    §    99 


shall  have  the  last  quarter-corners  planted  at  40  chains  (gov- 
ernment measure)  to  the  north  or  west,  as  the  case  may  be,  of 
the  last  interior  section  corner,  thus  throwing  any  excess  or 


o    G 

2     CL 


It 


M|N 


4-80    P 


first 


(0 

Q> 
CT 

I 


Towns 


Standard 


Base 


a 


476.96 


Parallel    North 


13 

"3 
j> 

In 
IT 


Line 


480 


nr 


Fiq.8 


deficiency  to  the  tier  of  quarter  sections  on  the  north 
west  sides  of  the  township.21 

-1  Manual   (1902)   §   132. 


and 


§    IOO  SURVEYING  AND   BOUNDARIES  74 

§  IOO.  Double  corners  on  standard  parallels. — It  will  be 
noted  that  the  range  lines  are  run  due  north  in  subdividing 
into  townships.  Hence  each  township  will  fall  short  of  six 
miles  in  width  at  the  top,  depending  on  the  distance  from  the 
base  line  or  standard  parallel.  In  the  latitude  of  46%  degrees, 
the  first  tier  of  townships  will,  as  we  have  seen,22  fall  short 
about  76  links;  the  second  approximately  1.52  chains;  the 
third  about  2.28  chains,  and  the  last  about  3.04  chains.  There- 
fore, double  corners  will  be  established  on  all  correction  lines, 
or  standard  parallels.23  These  figures  are  approximate  only. 
The  northeast  corner  of  township  4,  range  i  east,  will  be 
planted  at  "k."  The  southeast  corner  of  township  5,  range 
i  east,  will  be  planted  at  "1,"  about  3.04  chains,  on  the  cor- 
rection line,  to  the  east  of  corner  "k."  The  surveyor  is  re- 
quired to  measure  the  distance  between  the  two  double  cor- 
ners in  all  cases  and  enter  it  in  his  notes.  Fig.  8. 

In  the  latitude  of  42°  39'  7"  the  corner  at  "k"  would  be 
2.70  chains  west  of  the  corner  at  "1" ;  and  the  corner  at  "m" 
would  be  5.40  chains  west  of  the  corner  at  "n" ;  and  the  corner 
at  "o"  would  be  8.10  chains  west  of  the  corner  at  "p" ;  and  the 
corner  at  "r"  would  be  10.80  chains  west  of  the  corner  at 
"s."  The  farther  north  the  greater  will  be  the  convergency, 
and  the  farther  south  (north  of  the  equator)  the  less  will  be 
the  convergency. 

§  101.  Dividing  blocks  into  townships  south  of  the  base 
line. — It  frequently  happens  that  government  surveyors  are  re- 
quired to  run  out  blocks  of  townships,  lying  south  of  the  base 
line,  that  is,  the  base  line  instead  of  running  along  the  south 
boundary  of  the  tract  to  be  surveyed,  runs  through  the  tract. 
In  such  cases  the  townships  run  out  are  known  as  "south" 
townships.  When  such  is  the  case,  the  surveyor  will  first  run 
the  principal  meridian,  planting  permanent  corners  thereon 
every  half  mile  (40  chains).  Then  at  a  point  thereon  and 
twenty-four  miles  south  of  the  base  line,  the  surveyor  will  run 

"Ante  §  98. 
2«Ante  §  87. 


75         BASE   LINES PRINCIPAL   MERIDIANS TOWNSHIPS    §    IOI 


the  first  standard  parallel  or  correction  line  south,  planting 
permanent  monuments  thereon  every  40  chains.  This  correc- 
tion line  forms  the  base  of  the  townships  to  the  north  and 
from  which  the  townships  are  surveyed  northerly  the  same  as 
the  townships  lying  north  of  the  regular  base  line.  The  base 
line  forms  the  closing  boundary  of  the  townships  lying  south 
thereof.  Their  boundaries  close  on  such  base  line.  The 
excess  or  deficiency  is  thrown  on  the  north  and  west  sides  of 
the  township,  as  in  the  case  of  townships  lying  to  the  north 


MiN 


0,P  480  R    IS 


b 


Towns 


Bos« 
n 


Line 
TTT 


476.965 
TV 


480 


Fir*  Standard  Parallel  ISouth 


of  the  base  line.    Fig.  9.    The  standard  parallels  south  are  run 
uniformly  at  this  time  twenty-four  miles  apart. 

This  chapter  has  been  written  for  information  to  local  sur- 
veyors and  attorneys  and  is  not  intended  for  the  guidance  of 
government  surveyors  in  the  survey  of  the  public  lands. 


CHAPTER  VI 


SUBDIVIDING  TOWNSHIPS  AND  OBSERVATIONS 


Sec.  Sec. 

102.  Generally.  117. 

103.  Knowledge    of    original    sur- 

vey necessary.  118. 

104.  Direction    of    range    lines    in 

subdividing    townships.  119. 

105.  Direction    of    township    lines 

in  subdividing  township.        120. 

106.  Meridional   section  lines. 

107.  Line  between  thirty-five  and    121. 

thirty-six.  122. 

108.  Line  between  twenty-five  and 

thirty-six.  123. 

109.  Other  sections  lying  north  of 

thirty-six.  124. 

1 10.  Line     between     sections    one 

and  two.  125. 

in.    When     north     boundary     of 

township  is  a  base  line. 
112.    Rule  as  to  other  sections. 


113.  General       requirements       re- 

iterated. 

114.  Miscellaneous  suggestions. 

115.  Quarter-section    corners. 

116.  Impassable   objects   on   south 

boundary  of  township. 


126. 


127. 


Where  no  part  of  south 
boundary  established. 

Inaccessible  point  for  cor- 
ner. 

Extension  of  regular  lines 
impossible. 

Dependent  resurveys  and 
private  land  claims. 

Independent    resurvey. 

Metes  and  bounds  survey  of 
private  claims. 

Rules-Metes  and  bounds-Re- 
surveys. 

Example  of  dependent  resur- 
vey. 

Fractional  township-Subdivi- 
sion from  north  to  south 
and  from  east  to  west 

Fractional  townships- 
Subdivision  from  north  to 
south  and  from  west  to 
east. 

Fragmentary  townships. 


§  102.  Generally.— In  this  chapter  we  quote  freely  from 
the  Manual  of  Surveying  Instructions  for  the  Survey  of  the 
Public  Lands,  1902,  and,  in  some  instances,  refer  to  the  1919 
Manual,  recently  published.  We  do  this  to  the  end  that  the 
professions  may  have  the  exact  language  of  the  original  in- 
structions and  be  the  better  able  to  apply  them  to  the  particular 
original  survey,  which  may  be  under  consideration.  How- 
ever, the  professions  will  bear  in  mind  that  the  directions  for 
the  subdivisions  of  townships  laid  down  by  the  commissioner 


77  SUBDIVIDING   TOWNSHIPS    AND   OBSERVATIONS      §    103 

have  been  greatly  changed  in  recent  years,  as  will  be  apparent 
by  a  perusal  of  this  chapter. 

As  will  be  seen,  the  rule  formerly  for  running  the  merid- 
ional lines  of  sections  in  the  subdivision  of  a  township  was  to 
run  them  on  a  true  north  and  south  line  instead  of  parallel  to 
the  east  boundary  of  the  township.  It  is  important  to  know 
under  which  instruction  the  particular  survey  was  made. 

In  the  latter  part  of  this  chapter  we  treat  briefly  of  Depend- 
ent Resurveys  and  Independent  Resurveys  of  certain  townships 
in  which  rights  of  claimants  to  land  have  matured,  and  the 
rules  laid  down  for  the  execution  of  such  surveys,  to  the  end 
that  bona  fide  claimants  may  be  fully  protected.  Local  sur- 
veyors, in  making  subsequent  surveys,  must  give  heed  to  these 
rules  and  instructions  in  order  to  retrace  original  lines. 

Where  detached  surveys  have  previously  been  made  and 
later  a  survey  of  adjacent  parts  is  ordered,  the  deputy  sur- 
veyor is  required  to  "dove-tail,"  so  to  speak,  the  recent  sur- 
vey, with  the  detached  survey.  In  most  cases  this  is  prolific 
of  fractional  townships  and  fractional  sections  in  the  adjacent 
recent  survey.1 

§  103.  Knowledge  of  original  survey  necessary. — The  lo- 
cal surveyor  and  bar  should  have  exact  knowledge,  if  possible,* 
of  the  manner  of  subdividing  townships  into  sections  in  a 
given  survey.  The  instructions  issued  by  the  land  department 
to  the  surveyor-general  and  his  deputies,  in  early  days,  have 
not,  in  all  cases,  been  preserved.  In  all  such  cases  the  surveyor 
will  be  referred  to  the  field-notes  of  the  particular  survey  and 
may  gather  the  usual  and  general  information  therefrom 
necessary  to  his  work.  However,  he  will  bear  in  mind  that 
in  such  early  surveys  meager  instructions,  as  to  details,  were 
given  and  frequently  those  instructions  were  disregarded  and 
4  even  violated  by  the  deputy.  Thus  resurveys  are  made  more 
i  difficult.  In  some  instances  it  may  be  necessary  for  the  local 

1Manual  (1919)  §  155;  post  §  120. 


§    104  SURVEYING   AND   BOUNDARIES  78 

surveyor  to  write  to  the  commission  for  information  as  to  such 
early  instructions. 

At  the  present  time,  and  for  many  years,  the  instructions 
sent  out  have  been  minute  and  require  great  accuracy  of  the 
surveyor-general  and  his  deputies  in  the  execution  of  their 
duties.  These  instructions  will  be,  here,  briefly  considered. 

In  the  previous  chapter  we  treated  of  the  manner  of  subdi- 
viding a  tract  of  land  to  be  surveyed  into  townships.2  This 
having  been  done  according  to  instructions,  and  copies  of  the 
field-notes  having  been  furnished  the  subdividing  surveyor,  he 
will  proceed  to  the  southeast  corner  of  the  township.  At  or 
near  this  point  he  will  determine  a  true  meridian  by  Polaris 
or  solar  observations,  and  will  test  his  instrument  thereon 
and,  if  necessary,  fully  adjust  it.3 

He  will  then  retrace  the  first  mile  of  the  east  and  south 
boundaries  of  the  township  to  be  subdivided,  if  the  subdivision 
thereof  has  been  provided  for  by  separate  contracts.  If  by 
the  same  contract  under  which  the  township  was  surveyed,  the 
retracement  may  be  omitted.  All  discrepancies  resulting  from 
disagreements  of  bearings  or  measurements  will  be  carefully 
set  out  in  the  field-notes. 

§  104.  Direction  of  range  lines  in  subdividing  townships. — 
While,  in  theory,  the  statute  requires  the  northerly  section 
lines  (the  range  lines)  in  subdividing  a  township,  to  run  due 
north,  it  will  be  noted  that  the  instructions  now  sent  out  by 
the  commissioner  to  the  surveyor-general  and  his  deputies, 
provide  that  such  section  lines  shall  be  run  parallel  to  the  east 
boundary  of  the  township.4  Hence,  while  such  lines  are 
parallel  to  a  north  and  south  line,  they  do  not  run  north.  This 
is  evident.  Formerly  the  instructions  required  these  lines  to 
run  north  and  south.  By  the  present  method  the  deficiency  01; 
excess,  east  or  west,  is  thrown  onto  the  west  tier  of  sections^X 
of  the  township,  and  the  regular  sections  are  made  to  contain  ^^ 

2Ante  ch.  V.  4Manual   (1919)   §  177. 

3Manual    (1919)    §§   175-6;  Man- 
ual   (1902)    §§   135-6. 


79  SUBDIVIDING    TOWNSHIPS    AND    OBSERVATIONS        §    I<>5 

six  hundred  and  forty  acres  "as  near  as  may  be."  Of  course, 
the  chances  are  that  such  sections  will  not  be  actually  square 
but  they  will  approach  that  form.  All  of  the  northerly  sec- 
tion lines,  except  those  between  i  and  2,  2  and  3,  3  and  4,  4 
and  5  are  run  parallel  with  the  east  boundary  of  the  township. 
No  randoms  are  run  in  running  out  those  lines.  But  between  the 
sections  along  the  north  boundary  of  the  township,  random 
lines  are  run  north.  If  such  random  line  intersects  the  town- 
ship boundary  at  the  proper  section  corner,  it  is  made  perma- 
nent but  if  it  falls  either  east  or  west  of  the  proper  corner, 
the  surveyor  corrects  back  and  sets  the  temporary  stakes  over 
onto  the  proper  line,  as  determined,  by  making  it  run  to  the 
proper  section  corner.  In  other  words,  under  present  instruc- 
tions, the  closing  lines  to  the  north,  must  close  on  the  proper 
section  corner,  along  the  township  line.  Note  specific  instruc- 
tions, as  to  lines  between  sections  i  and  2  in  the  following 
paragraph.5 

But  it  must  be  noted  that,  when  the  north  boundary  of  the 
township  is  a  base  line  or  standard  parallel,  (correction  line), 
then,  such  northerly  lines  between  sections  I  and  2,  2  and  3, 
3  and  4,  4  and  5,  must  be  run  parallel  to  the  east  boundary  of 
the  township  and  the  section  corner  planted  on  such  base  line 
or  standard  parallel  at  the  point  of  intersection  of  such  par- 
allel line  with  such  base  line  or  standard  parallel.6 

§  105.  Direction  of  township  lines  in  subdividing  town- 
ship.— It  will  be  noted  that  in  running  township  lines — that  is 
the  easterly  and  westerly  lines  of  the  sections — random  lines 
are  always  run.  These  lines  are  run  easterly  in  .all  cases,  ex- 
cept the  lines  between  the  sections  bordering  on  the  west 
boundary  of  the  township.  In  the  latter  case  such  random 
lines  are  projected  westerly  until  they  meet  the  west  boundary 
of  the  township.  If  the  random  line  strikes  the  proper  sec- 
tion corner,  such  random  becomes  the  true  line.  But  if  it 

5Manual    (1919)    §    177. 
6Manual    (1919)    §    177. 


§    IO6  SURVEYING   AND   BOUNDARIES  80 

strikes  the  township  boundary  either  north  or  south  of  the 
true  corner,  the  surveyor  must  correct  back  and  set  over  onto 
the  true  line  thus  determined.  The  quarter-corners  on  the 
north  sides  of  sections  shall  be  placed  midway  between  the  re- 
spective section  corners,  except  those  in  the  west  tier  of  sec- 
tions. These  shall  be  placed  at  40  chains  (government  meas- 
ure) west  of  the  section  corner.  Note  the  specific  instructions 
below.  It  must  be  remembered  that  the  instructions  referred 
to  herein  are  those  of  the  commissioner  now  in  force.7  How- 
ever, the  earlier  surveys  were  made  under  different  and  vary- 
ing instructions,  and  the  surveyor  called  upon  to  retrace  any 
particular  survey  should  become  familiar  with  the  instructions 
given  to  the  original  surveyor.  Formerly,  the  line  between 
sections  35  and  36  was  run  due  north  instead  of  parallel  to  the 
east  line  of  section  36.  So  with  the  other  northerly  lines  of 
sections  in  a  township.  This  was  the  case  with  surveys  made 
in  1835,  and  1851,  and  at  earlier  and  some  later  dates. 

§  1 06.  Meridional  section  lines. — "The  meridional  section 
lines  will  be  made  parallel  to  the  range  line  or  east  boundary 
of  the  township/'  say  the  instructions,  "by  applying  to  the 
bearing  of  the  latter  a  small  correction,  depending  on  the  lati- 
tude, taken  from  the  table  appended  hereto,  which  gives,  to 
the  nearest  whole  minute,  the  convergency  of  two  meridians 
six  miles  long  and  from  one  to  five  miles  apart;  and  applies 
directly  the  deviation  of  meridional  section  lines  west  of 
north,  when  the  range  line  is  a  true  meridian.  Add  the  cor- 
rection to  the  bearing  of  the  range  line,  if  the  same  is  west 
of  north,  but  subtract  when  it  bears  east  of  north/'8  Thus  it 
will  be  seen  that  the  interior  northerly  section  lines  are  not 
on  the  true  meridian  but  parallel  to  the  east  boundary  of  the 
township.  This  throws  the  excess  or  deficiency  wholly  to  the 
west  side  of  the  township.  Bear  in  mind  the  difference  be- 
tween this  and  the  old  rule. 

7Manual    (1919)    §    178. 
8Manual    (1902)    §   136. 


8 1  SUBDIVIDING   TOWNSHIPS    AND    OBSERVATIONS       §    IO7 

Corrections  for  Convergency  Within  a  Township. 
Correction  to  be  Applied  to  Range  Line  at  a  distance  of — 
Latitude  i  mile      2  miles     3  miles    4  miles     5  miles 

30  to  35  i'  i'  2'  2'  3' 

35  to  40  i  i  2  3  3 

40  to  45  i  2  2  3  4 

45  to  5°  J  2  3  4  5 

5°  to  55  !  2  3  5  6 

55  to  6o  J  3  4  5  7 

60  to  65  2  3  5  7  8 

65  to  70  2  4  6  8  10 

Example.     Latitude  47.°     Range  line  bears  N.  o°  2'  E. ; 
then  parallel  meridional  section  lines  will  be  run  as  follows : 
From  the  corner  for  sections — 

35  and  36  N.  o°  i'  E. 

34  and  35  North 

33  and  34  N.  o°  i'  W. 

32  and  33  N.  o°  2'  W. 

31  and  32  N.  o°  3'  W. 

§  107.  Line  between  thirty-five  and  thirty-six. — Before  be- 
ginning the  subdivision  of  a  township  the  deputy  is  required  to 
test  his  instrument  on  a  true  meridian  so  determined  by  him. 
Then  he  runs  the  line  between  sections  35  and  36  parallel  to 
the  east  line  of  section  36,  beginning  at  the  southwest  corner 
thereof.  And  we  find  the  instructions  using  this  language : 
"After  testing  his  instrument  on  the  true  meridian  thus  de- 
termined, the  deputy  will  commence  at  the  corner  to  sections  35 
and  36,  on  the  south  boundary,  and  run  a  line  parallel  to  the 
range  line,  establishing  at  40  chains  the  quarter-section  corner 
between  sections  35  and  36,  and  at  80  chains  the  corner  for 
sections  25,  26,  35  and  36."  This  is  the  rule  now  followed. 
As  we  have  noted  heretofore  the  former  instructions  required 
this  line  to  be  run  due  north.9 
9Manual  (1902)  §  137;  ante  § 


1 02. 


§    108  SURVEYING  AND   BOUNDARIES  82 

§  1 08.  Line  between  twenty-five  and  thirty-six. — After 
the  surveyor  has  permanently  established  the  corner  at  80 
chains  north  of  the  township  line,  being  the  northwest  corner 
of  section  thirty-six,  he  is  required  to  random  eastward  be- 
tween sections  twenty-five  and  thirty-six,  and  parallel  to  the 
south  boundary  of  section  thirty-six,  planting  temporary  corn- 
ers at  40  and  80  chains  respectively.  Should  the  random  line 
intersect  the  range  line  at  the  section  corner  then  he  will  re- 
trace the  random,  blazing  the  trees  back  on  the  line  and  estab- 
lishing the  permanent  corner  at  a  point  midway  between  the 
two  section  corners.  The  exact  wording  of  the  instructions 
are:  "From  the  last  named  corner,  a  random  will  be  run 
eastward,  without  blazing,  parallel  to  the  south  boundary  of 
section  36,  to  its  intersection  with  the  east  boundary  of  the 
township,  placing  at  40  chains  from  the  point  of  beginning,  a 
post  for  temporary  quarter-section  corner.  If  the  random  line 
intersects  said  township  boundary  exactly  at  the  corner  for 
sections  25  and  36,  it  will  be  blazed  back  and  established  as 
the  true  line,  the  permanent  quarter-section  corner  being  estab- 
lished thereon,  midway  between  the  initial  and  terminal  sec- 
tion corner."10  If  the  objective  corner  is  in  sight  from  the 
starting  point,  or  the  deputy  has  evidence  of  its  location  to 
prove  that  a  different  random  course  would  fall  closer  to  the 
desired  corner,  he  may  use  such  changed  course  for  his  ran- 
dom. In  fact,  a  line  may  be  run  as  a  random  for  distance  only 
when  the  course  is  certain.11  Should  the  random  intersect  the 
township  boundary  either  to  the  north  or  the  south  of  the 
proper  section  corner,  the  surveyor  will  carefully  note  the 
falling,  and  from  the  data  thus  obtained,  the  true  return  course 
will  be  calculated,  and  the  true  line  blazed,  and  the  position  of 
the  quarter-section  corner  will  be  permanently  established,  as 
directed  above.  The  surveyor,  of  course,  will  record  in  his 
minutes  the  details  of  the  proceedings  for  future  references.12 
It  should  be  remembered  that  the  meridional  section  lines  take 

i°Manual   (1902)    §   138.  "Manual  '(1902)    §   *-•>;  Manual 

"Manual   (1902)   §  139.  (1919)  §  178. 


83  SUBDIVIDING   TOWNSHIPS    AND   OBSERVATIONS       §    III 

precedence  of  the  latitudinal  lines  and  should  be  given  greater 
weight  by  the  surveyor  who  is  retracing  the  lines  of  a  section.13 

§  109.  Other  sections  lying  north  of  thirty-six. — The  sur- 
veyor having  established  the  north  boundary  to  section  36 
will  establish  the  boundaries  between  24  and  25  and  between 
12  and  13  in  the  same  way  directed  for  the  said  north  boundary 
of  36,  except  that  the  random  line  between  24  and  25  will  be 
run  parallel  to  the  north  boundary  of  36,  or  in  other  words 
parallel  to  the  south  boundary  of  section  25.  The  random 
line  between  sections  12  and  13  will  be  run  parallel  to  the 
south  boundary  of  13.  Likewise,  the  random  line  between  sec- 
tions i  and  12  will  be  run  parallel  to  the  south  boundary  of 
section  I2.14 

§  no.  Line  between  sections  one  and  two. — A  different 
rule  prevails  with  regard  to  the  line  between  sections  i  and  2. 
It  is  provided  that  from  the  corner  common  to  sections  i,  2, 
n,  and  12  a  random  line  shall  be  run  northward  parallel  to 
the  east  boundary  of  the  township.  A  temporary  corner  shall 
be  set  at  40  chains.  The  deputy  then  continues  his  random  to 
the  north  boundary  of  the  township.  If  such  random  inter- 
sects the  township  line  at  exactly  the  section  corner  between 
sections  i  and  2,  it  will  be  blazed  back  as  the  true  line.  The 
temporary  quarter-corner  will  be  established  as  the  permanent 
corner.  This  will  throw  any  fractional  measurement  onto  the 
north  half  of  the  sections  bordering  on  the  north.15 

But  should  the  random,  as  projected,  fall  either  to  the  east 
or  west  of  the  section  corner  between  sections  i  and  2,  the 
surveyor  will  note  carefully  the  falling  either  east  or  west,  and 
from  the  data  obtained  he  will  compute  the  bearing  of  the  true 
line  and  then  establish  such  true  line.  He  will  place  the  quar- 
ter-corner at  the  proper  place,  40  chains  northerly  from  the 
southwest  corner  of  section  i,  on  the  line  so  established.16 

§  in.     When  north  boundary  of  township  is  a  base  line. — 

13Manual    (1919)    §    180.  16Manual   (1902)   §   142;  Manual 

14Manual   (1902)    §  141.  (1919)   §  181. 

15Manual    (1902)   §  142. 


§112  SURVEYING  AND  BOUNDARIES  84 

But  when  the  north  boundary  of  a  township  is  a  base  or  cor- 
rection line  still  another  rule  prevails.  The  reason  for  the 
rule  is  evident.  In  such  case  the  line  between  sections  i  and  2 
will  be  run  in  this  manner.  Such  line  will  be  run  parallel  to 
the  east  boundary  of  the  township  as  a  true  line.  No  random  is 
necessary.  At  40  chains  the  deputy  will  establish  the  quarter- 
section  corner  between  sections  i  and  2.  He  will  establish  a 
closing  corner  at  the  intersection  of  the  line  so  run,  with  the 
north  boundary  of  the  township.  He  will  carefully  measure 
the  distance  from  such  closing  corner  to  the  nearest  standard 
corner  on  the  base  or  correction  line  and  make  a  record 
thereof.17 

§  112.  Rule  as  to  other  sections. — Each  successive  range 
of  sections  through  the  township,  until  the  fifth  range  is 
reached,  is  run  out  in  the  same  manner.  As  to  the  fifth  range 
the  section  corner  will  be  established  at  northwest  corner  of 
section  32  in  the  same  manner  as  in  the  previous  ranges.  From 
this  corner  a  random  line  will  be  run  westerly  to  its  intersec- 
tion with  the  west  boundary  of  the  township,  planting  a  tem- 
porary post  at  40  chains  on  said  line.  The  falling  will  be  noted 
and  the  true  line  established  in  the  same  manner  as  for  running 
the  easterly  lines  of  the  other  ranges,  with  this  exception.  The 
quarter-section  corner  will  be  placed  exactly  40  chains  west- 
erly on  the  true  line  from  the  last  section  corner.  This  throws 
the  fraction  on  the  westerly  halves  of  the  several  sections. 
The  other  lines  for  the  west  tier  of  sections  are  run  in  the 
same  manner.18 

§  113.  General  requirements  re-iterated. — "The  random  of 
a  latitudinal  section  line  will  always  be  run  parallel  to  the  south 
boundary  of  the  section  to  which  it  belongs,"  we  are  advised 
by  the  commissioner,  "and  with  the  true  bearing  of  said  boun- 
dary; and  when  a  section  has  no  linear  south  boundary,  the 
random  will  be  run  parallel  to  the  south  boundary  of  the 

"Manual    (1902)   §  143;  Manual 
(1919)  §  181.  _.  4 

18Manual    (1902)    §    144. 


85  SUBDIVIDING   TOWNSHIPS    AND   OBSERVATIONS       §    113 


Fiq.lO 


§114  SURVEYING   AND   BOUNDARIES  86 

range  of  sections  in  which  it  is  situated,  and  fractional  true 
lines  will  be  run  in  a  similar  manner."  Fig.  io.19  The  bear- 
ing of  the  south  boundary  of  that  township  was  the  same  as 
the  south  boundary  of  section  17  of  the  figure.  It  will  be 
well  for  the  surveyor  to  keep  this  general  statement  of  the  rule 
with  reference  to  latitudinal  section  lines  in  his  mind. 

§  114.  Miscellaneous  suggestions. — The  rules  provide  that 
the  deputy  is  not  required  to  complete  the  survey  of  the  first 
range  of  sections  from  south  to  north  before  commencing  the 
survey  of  the  second  or  any  subsequent  range  of  sections,  "but 
the  corner  on  which  any  random  line  closes  shall  have  been 
previously  established  by  running  the  line  which  determines 
its  position,"  we  are  told,  "except  as  follows :  Where  it  is  im- 
practicable to  establish  such  section  corner  in  the  regular  man- 
ner, it  will  be  established  by  running  the  latitudinal  section 
line  as  a  true  line,  with  a  true  bearing,  determined  as  above 
directed  for  random  lines,  setting  the  quarter-section  corner 
at  40  chains  and  the  section  corner  at  80  chains."  Fig.  io.20 

§  115.  Quarter-section  corners. — All  quarter-section  cor- 
ners, whether  on  meridional  or  latitudinal  lines,  except  as 
herein  stated,  will  be  placed  at  points  equidistant  from  the 
corresponding  section  corners.  But  on  lines  closing  on  the 
north  or  west  boundaries  of  a  township  the  quarter-section 
corner  will  always  be  established  at  precisely  40  chains  to  the 
north  or  west,  as  the  case  may  be,  of  the  respective  sections 
from  which  those  lines  respectively  start,  by  which  the  excess 
or  deficiency  of  such  sections  will  be  thrown  on  the  north  or 
west  sides  thereof.21 

§  1 1 6.  Impassable  objects  on  south  boundary  of  town- 
ship.— In  those  cases  where  there  are  impassable  objects  on  the 
south  boundary  of  a  township,  so  that  only  a  part  of  such 
boundary  may  be  established,  it  will  be  necessary  to  run  an 

19Manual   (1902)   §  145.  21Manual    (1902)    §    147. 

20Manual    (1902)    §   146;  ante   § 
106. 


SUBDIVIDING    TOWNSHIPS    AND    OBSERVATIONS       §    Il6 


auxiliary  base  line  or  lines  through  that  portion  of  the  town- 
ship which  has  no  linear  south  boundary.  The  rules  sent  out 
make  provision  for  such  auxiliary  base.  Any  fraction  south 
of  such  line  is  required  to  be  surveyed  or  subdivided  by  run- 
ning south  from  such  base.  The  rules  provide  that  an  auxil- 
iary base  line  or  lines  "will  be  run  through  the  portion  which 
has  no  linear  south  boundary,  first  random,  then  corrected, 


owns 


Ki 


ip 


"Auxiliary  Base 


connecting  properly  established  corresponding  section  corners 
(either  interior  or  exterior)  and  as  far  south  as  possible;  and 
from  such  line  or  lines,  the  section  line  will  be  extended  north- 
erly in  the  usual  manner,  and  any  fraction  south  of  said  line 
will  be  surveyed  in  the  opposite  direction  from  the  section 


§117  SURVEYING  AND  BOUNDARIES  88 

corners  on  the  auxiliary  base  thus  established."    Figs,  n,  12. 


TownsKi 


p 


Fiq  12 


§  117.  Where  no  part  of  south  boundary  established. — 
Where  no  part  of  the  south  boundary,  by  reason  of  impassable 
objects,  can  be  established  the  deputy  is  required  to  subdivide 
the  township  from  north  to  south.  This  will  throw  the  excess 
or  deficiency  along  the  south  and  west  sides  of  the  township. 
These  cases  will  usually  be  found  where  the  township  borders 

"Manual    (1902)    S    I4& 


SUBDIVIDING   TOWNSHIPS    AND   OBSERVATIONS       § 


on  a  national  park,  a  private  claim,  a  reserve  or  similar  tract 
of  land.  It  may  occur  where  there  is  a  meanderable  stream 
or  body  of  water  limiting  the  township. 

So  also  if  the  east  boundary  of  a  township  is  without  regu- 
lar section  corners  and  the  north  boundary  has  been  run  east- 
erly as  a  true  line,  with  section  corners  at  regular  intervals  of 


Towns  Kip 


-Auxiliary      Base 


8o  chains,  the  subdivision  of  the  township  will  be  made  from 
west  to  east,  thus  throwing  the  fractional  measurements  and 
areas  against  the  irregular  east  boundary.23  Figure  15  repre- 
sents a  case  where  both  conditions  exist.  Fig.  16  also  repre- 

23Manual   (1902)   §  149;  Manual 
(1919)  §§  213-214-215. 


§    Il8  SURVEYING  AND  BOUNDARIES  QO 

sents  the  same  conditions  under  different  circumstances.  It 
will  be  seen  that  in  Fig.  15  sectional  guide  meridians  have  been 
run.  From  these  guide  meridians  the  fractional  sections  on 
the  easterly  boundary  of  the  township  have  been  set  off  into 
lots  and  numbered. 

§  118.  Inaccessible  point  for  corner. — It  frequently  hap- 
pens that  the  point  where  a  section  or  township  corner  should 
be  planted  is  inaccessible.  In  such  cases  it  is  the  practice  for 
the  deputy  to  locate  witness  corners  on  each  of  the  lines  ap- 
proaching such  point.  These  should  be  located  at  distances 
not  exceeding  20  chains  therefrom.  Said  witness  corners  will 
be  properly  established,  and  the  half  mile  on  which  they  are 
established  will  be  recognized  as  a  surveyed  line.  Full  data 
must  be  entered  in  the  notes  of  the  survey.  Such  witness 
corners  should  be  marked  as  conspicuously  as  a  section  corner, 
and  bearing  trees  will  be  marked  wherever  possible.  The 
deputy  will  be  required  to  furnish  good  evidence  that  the 
particular  corner  is  inaccessible.  This  evidence  should  be 
noted  in  the  record.24 

In  the  event  a  considerable  tract  of  desirable  land  is  inacces- 
sible, so  to  speak,  and  section  lines  are  too  short  to  justify  the 
erection  thereon  of  necessary  witness  corners,  the  deputy  may 
run  offset  lines  on  lines  of  legal  subdivision,  far  enough  to 
show,  by  necessary  witness  corners  the  particular  tract.25 

§  119.  Extension  of  regular  lines  impossible. — In  such 
cases  meander  corners  are  not  permitted  but  the  deputy  is 
required  to  set  witness  corners  and  enter  full  data  in  his  notes. 
"Where  inaccessible  precipices,"  say  the  instructions,  "deep 
canyons  or  lands  otherwise  quite  unsurveyable,  prevent  the  ex- 
tension of  regular  lines,  deputies  are  not  authorized  to  set 
meander  corners,  nor  to  meander  the  line  separating  lands  that 
can  be  traversed  from  those  that  can  not.  In  place  of  mean- 
dering, they  are  to  set  witness  corners  on  line,  near  the  inter- 

2*Manual  (1902)   §  150.  25Manual   (1902)   §  152. 


91  SUBDIVIDING    TOWNSHIPS    AND    OBSERVATIONS       §    I2O 

section  of  section  lines  with  the  brink  or  foot  of  the  impassable 
cliffs,  or  at  the  margin  of  the  impracticable  marsh,  to  repre- 
sent an  inaccessible  regular  section  or  quarter-section  corner  if 
within  20  chains.  Such  quarter-section  thus  marked  may  be 
platted  as  surveyed/'26  See  Fig.  39  and  40. 

§  1 20.  Dependent  resurveys  and  private  land  claims. — - 
There  are  many  private  claims  in  our  western  country  which 
were  located,  either  prior  to  a  general  survey  of  the  locality 
in  which  they  are  situated,  or  within  a  limited  tract  which  was 
surveyed  in  that  particular  vicinity.  In  making  such  resur- 
veys the  government  surveyor  frequently  finds  locally  recog- 
nized corners,  discordantly  related  to  the  original  survey. 
Such  corners  can  only  be  employed  for  the  determination  of 
the  boundaries  of  claims  where  bona  fide  rights  have  been 
acquired  and  duly  established.  Frequently  these  rights  are  sur- 
veyed by  the  government  surveyor  under  the  so  called  "metes 
and  bounds"  system.27  Many  of  these  claims  have  been  worked 
and  improved  for  many  years ;  buildings  and  fences  have  been 
built  thereon  and  the  patentee  has  gained  valuable  rights  there- 
by. Such  claims  are  usually  found  in  townships  which  have 
been  partially  surveyed  only.  It  is  desired  to  complete  the  sur- 
vey of  the  township  and  to  protect  the  claimant. 

In  such  cases,  if  the  original  survey  was  legal  and  there  was 
no  fraud  in  the  execution  thereof,  the  government  surveyors 
are  required  to  run  out  the  exterior  lines  of  the  claims,  either 
as  described  in  the  patent,  if  a  patent  has  been  issued,  or  as 
actually  claimed  and  occupied  by  the  claimant.  They  are  re- 
quired to  show  the  claim  on  the  plat  of  the  resurvey  filed  and 
to  complete  the  survey  of  the  township.  Often  these  townships 
are  very  irregular  and  the  surveyor  finds  it  necessary  to  run 
out  lots  on  the  several  sides  of  the  township,  and  also  adjacent 
to  the  claim.  These  lots  are  required  to  be  numbered  on  the 
plat  and  full  information  and  notes  are  returned  to  enable 

26Manual   (1902)   §  151.  27Manual   (1919)   §  426. 


§    121  SURVEYING  AND  BOUNDARIES  Q2 

succeeding  local  surveyors  to  relocate  all  of  the  subdivisions 
thereof.  No  resurvey  of  such  township  should  be  attempted 
without  a  copy  of  the  official  plat  and  field-notes.  For  an 
example  of  such  independent  resurvey  see  Manual  of  Survey- 
ing.28 See  also  Fig.  17. 

§  121.  Independent  resurvey. — An  independent  resurvey  is 
one  made  by  the  government  surveyors.  It  is  an  official  re- 
subdivision  of  the  public  lands  distinct  from  the  original  sur- 
vey which  it  is  the  design  to  supersede.  It  is  proper  where 
there  have  been  gross  frauds  in  the  original  survey  or  where 
gross  errors  have  been  made.  There  are  three  distinct  steps 
in  such  resurvey:  a.  The  establishment  of  the  outer  boun- 
daries of  the  tract  to  be  surveyed  under  the  method  of  depend- 
ent surveys,  b.  The  segregation  of  lands  embraced  in  any 
valid  claim  where  steps  have  been  taken  looking  to  the  ac- 
quirement of  title  based  on  the  former  plat  and  survey,  c.  Such 
new  exterior  subdivision  and  meander  lines  as  are  necessary 
shall  be  run  on  a  new  plan,  which  shall  supersede  the  old  one 
and  prevail.29  The  limiting  boundary  lines  of  lands  subject 
to  independent  resurvey  must  agree  with  the  previously  estab- 
lished and  identified  exterior  and  subdivisional  lines  of  the 
approved  original  survey.30 

§  122.  Metes  and  bounds  survey  of  private  claims. — After 
the  outboundaries  of  the  lands  subject  to  independent  resurvey 
have  been  fixed  the  surveyor  is  required  to  run  out  "all  duly 
entered,  selected,  reserved  (in  certain  cases)  granted  or 
patented  lands,"  which  are  described  according  to  the  former 
approved  plat.  These  boundary  lines  shall  be  run  by  the  metes 
and  bounds  system,  that  is  by  courses  and  distances,  so  that 
they  may  be  platted  in  the  section  of  the  township  to  which 
they  belong.  Where  these  claims  are  bounded  substantially 
by  the  regular  subdivision  lines  they  will  be  so  platted  and  may 

28Manual   (1919)   §  427.  30Manual  (1919)   §  429. 

"Manual    (1919)    §   428- 


93  SUBDIVIDING    TOWNSHIPS    AND    OBSERVATIONS        §    123 

be  so  described.  The  government  surveyor  is  required  to  con- 
sult the  private  land  claimant  as  to  his  boundaries  and  the  latter 
should  point  out  his  boundaries,  as  he  claims  them  to  be.  The 
identity  of  each  claim  to  be  segregated  must  be  maintained  by 
the  surveyor.  If  improvements  have  been  made  in  good 
faith  the  surveyor  is  required  to  so  execute  the  survey  as  to 
cover  as  nearly  as  possible  such  improvements,  and  at  the  same 
time  maintain  substantially  the  lands  described  in  the  original 
entry.  And  it  is  said,  "Each  non-conformable  valid  claim  in  a 
township  will  be  given  a  serial  tract  number,  commencing  with 
number  37  in  the  smallest  numbered  and  entered  section  of  the 
original  plat,  progressing  through  the  township  in  the  order 
in  which  lots  and  sections  are  numbered.  "And  we  find  the 
commissioner  saying,  "A  tract  number  will  be  used  but  once 
in  a  township,  and  if  any  tract  lies  partly  in  two  or  more 
townships  subject  to  resurvey  the  number  applied  to  the  tract 
in  the  first  township  resurveyed  will  not  be  used  for  other 
tracts  in  the  adjoining  townships."81 

It  will  be  readily  seen  that  the  claim  surveyed  by  metes  and 
bounds  in  a  township  to  be  first  numbered  will  be  the  one  in 
the  "smallest  numbered"  section.  That  is  if  the  smallest  or 
lowest  numbered  section  in  which  any  such  claim  in  a  town- 
ship is  found  is  in  section  10,  then  that  claim  will  be  termed, 
"Number  37,"  and  will  so  appear  on  the  plat.  Other  claims 
will  be  numbered  in  regular  order  following,  as  38,  39,  etc. 
These  numbers  will  follow  in  the  next  lowest  numbered  sec- 
tion in  the  township.  If  the  claim  extends  to  another  town- 
ship a  new  number  must  be  given  that  part  in  the  other  town- 
ship. 

§  123.  Rules — Metes  and  bounds — Resurveys. — The  gov- 
ernment has  prescribed  certain  rules  to  be  followed  in  metes 
and  bounds  surveys  of  specially  designated  tracts.  We  here 
give  an  abstract  of  such  rules  as  follows : 

31Manual  (1919)   §  444. 


§    123  SURVEYING   AND   BOUNDARIES  94 

(a).  Each  claim  at  variance  with  the  lines  of  the  resurvey 
but  acceptably  located,  "will  be  surveyed  and  monumented 
at  each  angle  point." 

(b).  In  the  event  a  portion  of  a  claim  is  in  a  township  not 
subject  to  resurvey,  such  portion  will  not  be  run  out  by  metes 
and  bounds,  "providing  the  limiting  boundary  is  found  to 
qualify  as  set  forth  in  Section  429"  of  the  Manual,  (1919). 
That  portion  of  claim  in  the  township  to  be  resurveyed  should 
be  defined  in  a  position,  "which  is  properly  related  to  the 
identified  or  restored  corners  on  the  limiting  boundary." 

(cy.  Where  the  boundaries  of  the  claim  are  not  acceptably 
located  as  pointed  out  by  the  claimant,  the  surveyor  is  required 
to  proceed  with  a  proper  survey  of  the  tract.  He  is  required 
to  monument  the  corners.  If  claimant  protests  against  such 
location,  he  will  make  his  protest  in  writing  and  it  shall  be 
made  a  part  of  the  return  to  the  land  department  together  with 
all  notes,  data  and  information. 

(d).  Where  the  metes  and  bounds  segregation  does  not 
include  all  of  the  lands  occupied  by  or  claimed  by  the  entry- 
man,  patentee  or  owner,  and  the  entryman  indicates  a  desire 
to  amend  his  entry,  a  full  report  shall  be  made  by  the  sur- 
veyor and  full  notes  shall  be  returned  to  the  department,  "all 
looking  to  the  protection  of  the  title  to  the  land  actually 
earned." 

(e).  In  the  event  the  quarter-quarter  section  embraced 
within  a  claim  fall  approximately  in  the  same  position  as  the 
quarter-quarter  section  of  the  resurvey,  and  the  entryman  in- 
dicates a  desire  to  conform  his  claim  to  the  resurvey,  and  there 
seems  no  apparent  objection,  the  surveyor  will  state  the  facts 
in  the  field-notes,  and  the  claim  will  be  so  indicated  on  the 
resurvey  plat.  In  such  cases  the  metes  and  bounds  survey  will 
be  omitted.  But  where  any  tract  whose  original  description 
includes  a  fractional  lot,  or  where  any  part  of  a  tract  is  within 
any  fractional  lot  of  the  resurvey,  the  tracts  must  be  segregated 
as  a  whole  by  metes  and  bounds,  even  though  some  or  all  of 


95  SUBDIVIDING   TOWNSHIPS    AND   OBSERVATIONS       §    124 

the  boundaries  of  the  lot  coincide  with  the  subdivisional  lines 
of  the  resurvey. 

(f).  Conflicting  tracts  will  be  surveyed  and  monumented 
and  conflict  shown  on  the  resurvey  plat.  All  conflicting  boun- 
daries must  be  shown  on  the  plat  and  data  given  in  the  field- 
notes. 

(g).  Angle  points  will  be  numbered  serially,  beginning 
with  Number  i  in  the  northeast  corner,  "proceeding  around 
the  claim,  running  westerly  from  the  initial  corner." 

(h).  No  accessories  will  be  planted  at  the  angle  points 
but  monuments  will  be  planted  at  such  points.32  All  claims 
shall  be  shown  on  the  plat  of  the  resurvey,  and  full  notes  of 
such  survey  must  be  returned  with  such  plat.  These  notes 
and  the  plat  are  absolutely  necessary  in  all  retracements  of 
the  lines  so  run  in  such  resurvey. 

§  124.  Example  of  dependent  resurvey. — Figure  14  is  a 
copy  of  a  diagram  furnished  by  the  commissioner  of  the  land 
office.33  This  diagram  bears  on  instructions  from  the  land 
office  to  the  surveyor-general  and  his  deputies  with  reference 
to  dependent  resurveys,  briefly  treated  in  this  chapter.  We 
give  this  diagram  in  order  that  local  surveyors  may  understand 
the  method  pursued  in  such  resurveys.  The  main  purpose  is 
to  restore  original  corners  and  lines,  and  the  protection  of  the 
bona  fide  rights  of  claimants  in  their  locations. 

Of  course,  the  restoration  of  comers  and  lines  must  be 
brought  about  with  reference  to  the  evidence  of  the  original 
survey,  and  the  discovery  and  identification  of  original  cor- 
ners. We  here  give  the  key  to  Fig.  14,  as  given  by  the  land 
department. 

Key  to  Figure  14. 

"A — Identified  original  corner; 

B — Intersection  of  center  lines  of  public  cross  roads,  in- 
tended to  be  located  at  section  corner  and  generally  so  recog- 
nized ;  accepted  as  best  available  evidence  of  corner ; 

32Manual   (1919)   §  445.  33Manual   (1919)   §  427. 


§  124 


SURVEYING  AND  BOUNDARIES 


C  and  D — Identified  original  corners; 

E — Corner  established  by  local  surveyor;  record  shows 
proper  application  of  the  method  of  double  proportionate 
measurement;  generally  recognized  as  correct  position  of  cor- 
ner; accepted  on  an  equality  with  an  identified  original 
corner; 


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97  SUBDIVIDING   TOWNSHIPS    AND   OBSERVATIONS       §    124 

dinal  blazed  lines  through  virgin  timber;  age  count  on  over- 
growth qualifies  for  date  of  original  survey; 

Q — Restored  corner  based  upon  control  furnished  by  latitu- 
dinal position  of  blazed  line  as  above  and  fixed  in  departure  by 
distance  to  original  line  tree. 

R — Identified  original  corner; 

S — Same  as  E ; 

T — Position  by  location  of  improvements;  point  agrees 
approximately  with  the  theoretical  position  and  it  is  recog- 
nized by  adjoining  claimants;  improvements  would  be  ad- 
versely affected  by  change  of  point; 

U — Same  as  E; 

V  and  W— Same  as  T; 

X — Identified  original  corner; 

a — Duly  restored  by  double  proportionate  measurement  and 
thereafter  employed  for  general  control  on  an  equality  with 
an  identified  original  corner; 

b-n — Inclusive — Theoretical  true  line  position,  duly  re- 
stored by  single  proportionate  measurement. 

O — Employed  for  general  control.     (Corners). 

I — Theoretical  position.     (Corners). 

Method 

After  completing  all  retracements  and  having  determined 
upon  the  general  control  to  be  adopted,  as  indicated  in  the  dia- 
gram, (Fig.  14),  and  accompanying  key,  the  true  lines  of  the 
dependent  resurvey,  beginning  at  the  southeast  comer  of  the 
township,  will  be  re-established  as  follows : 

Single  proportionate  measurement. 

Lines:  A-B,  B-a,  A-C,  C-D,  D-E,  E-F,  F-G,  G-H,  H-I,  a-J, 
J-K,  K-L,  L-M,  and  M-I. 

Double  proportionate  measurement. 

Section  corners:  i,  f-N  and  b-F;  2,  F-N  and  c-S;  3,  O-P 
and  d-X;  4,  C-Q  and  b-F;  5,  C-Q  and  c-S;  6,  C-Q  and  N-U; 


§    125  SURVEYING   AND   BOUNDARIES  98 

7,  C-Q  and  d-X;  8,  g-S  and  b-F;  9,  U-n  and  d-X;  10,  U-n 
ind  Q-G;  II,  D-L  and  b-F;  12  D-L  and  V-i;  13,  D-L  and 
W-j;  14,  D-L  and  d-X;  15,  D-L  and  Q-G;  16,  h-X  and  b-F; 
17,  h-X  and  V-i;  18,  h-X  and  W-j ;  19,  X-M  and  Q-G. 

Interior  quarter-section  corners. 

All  missing  interior  quarter-section  corners  by  single  pro- 
portionate measurement  on  line  between  the  adjoining  section 
corners  as  above  determined."34 

The  above  key  will  enable  the  reader  to  understand  the 
method  pursued  by  the  government  surveyors  in  making  de- 
pendent resurveys.  Full  notes  must  be  taken  and,  with  plat, 
returned  to  the  land  office.  This  resurvey,  when  approved  by 
the  commissioner,  will  become  the  original  survey.  Hence 
the  local  surveyor  must  have  full  notes  of  both  the  original 
and  the  resurvey  by  the  government  to  enable  him  to  properly 
retrace  the  lines.  The  same  rule  will  be  followed  by  local 
surveyors  in  relocating  lost  corners. 

§  125.  Fractional  township — Subdivision  from  north  to 
south  and  from  east  to  west. — As  we  have  seen  there  are  many 
fragmentary  and  odd  shaped  fractional  townships  where  it  is 
impossible  to  follow  the  general  rule  in  the  subdivision  thereof 
into  sections.  We  have  seen  that  under  certain  circumstances 
auxiliary  bases  are  established  from  which  the  subdivision 
will  proceed.35  There  is  another  class  of  fractional  townships 
in  which  the  subdivisional  lines  are  required  to  be  run  from 
north  to  south  and  from  east  to  west.  Fig.  15.  In  order  that 
the  latitudinal  lines  may  be  run  from  east  to  west  the  surveyor 
is  required  to  establish  "sectional  guide  meridians"  from  which 
the  westerly  lines  will  be  initiated.  This  sectional  guide  me- 
ridian is  required  to  be  run  from  the  eastermost  regular  sec- 
tion corner  on  the  north  side  of  the  township  and  projected 
south.  A-B  Fig.  15.  This  will  give  fractional  measure- 

3*Manual   (1919)   §  427. 
35Ante  §  116. 


99 


SUBDIVIDING    TOWNSHIPS    AND   OBSERVATIONS       §    126 


ments  and  lots  on  the  west,  south  and  east  sides  of  the  town- 
ship. In  the  diagram  the  township  is  bounded  on  the  south 
and  east  sides  by  a  reservation.  The  same  rule  will  apply  in 
the  event  the  township  was  bounded  on  those  sides  by  a  park 
or  body  of  water,  or  an  impassable  swamp.  In  cases  where 
Frac-  A 


Rq.15 


the  sectional  guide  meridian,  initiated  as  above,  strikes  the 
diagonal  or  east  side  of  the  township  it  will  be  necessary  to 
continue  the  same  on  the  section  line  next  to  the  west  as  shown 
in  the  diagram.  C-D  Fig.  I5.36  The  method  described  in 
this  section  is  used  in  those  cases  where  section  six  of  the 
township  is  fractional. 

§  126.     Fractional  townships — Subdivision  from  north  to 


36Manual   (1919)   §  213. 


§    126 


SURVEYING   AND   BOUNDARIES 


IOO 


south  and  from  west  to  east. — In  the  subdivision  of  fragmen- 
tary townships,  where  section  6  is  not  fractional,  and  where 
the  south  and  east  sides  are  irregular,  the  subdivision  lines 
will  be  run  from  north  to  south  and  from  west  to  east,  thus 
throwing  the  excess  or  deficiency  on  the  south  and  east  sides 
of  the  fractional  township,  making  the  sections  on  those  sides 
fractional.  Fig.  i6.37 

The  local  surveyor,  in  making  surveys  of  such  townships, 
or  parts  thereof,  and  in  retracing  and  re-establishing  the  orig- 


80.00 

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inal  lines  and  corners  should  possess  full  notes  and  a  plat  of 
the  original  survey. 

"Manual    (1919)    §   213. 


IOI  SUBDIVIDING   TOWNSHIPS    AND   OBSERVATIONS       §    127 

§  127.  Fragmentary  townships. — In  days  gone  by,  the  gov- 
ernment frequently  made  fragmentary  surveys  of  detached 
portions  of  the  public  domain.  One  or  more  sections  or  parts 
of  sections  would  be  so  run  out.  Sometimes  in  the  same 
township  and  sometimes  in  a  different  township.  Generally  in 
such  cases  the  exteriors  of  the  particular  township  would  be 
established  with  reference  to  the  base  line  and  principal  merid- 
ian for  that  locality.  While  they  were  often  defective  still 
they  are  conclusively  taken  as  right.  These  townships  were 
partially  subdivided  into  sections  and  the  balance  of  the  town- 
ship remained  unsurveyed  to  be  taken  up  at  some  future  day. 
The  surveyors  to  whom  are  assigned  the  subdivision  of  the 
remainder  of  such  fragmentary  township  are  required  to  re- 
spect the  lines  formerly  established  in  the  former  partial  sub- 
division, and  are  required  to  "dove-tail",  so  to  speak,  the  two 
surveys.  Necessarily,  where  the  first  work  was  defective, 
there  would  be  many  double  corners  and  fractional  interior 
sections.  These  fractional  sections  are  divided  into  lots  in 
those  cases  where  the  regular  subdivision  could  not  be  made. 

Figure  17  is  an  illustration  of  a  partial  township  so  subdi- 
vided. The  sections  shown  are  4,  5,  8,  9,  16,  17,  20,  and  21. 
The  northeast  quarter  of  section  4,  the  northwest  quarter  of 
section  5,  the  southeast  quarter  of  section  9,  and  all  of  section 
1 6,  and  portions  of  section  19,  were  the  parts  run  out  in  the 
first  survey.  Corners  A,  B,  C,  D,  E,  and  F,  are  supposed  to  be 
correctly  located  with  reference  to  the  township  corners.  The 
irregular  and  out  of  place  sections  are  those  of  the  first  survey, 
whose  boundaries  must  be  respected.  Thus,  numerous  lots 
are  required  in  the  new  sections  surrounding  the  first  survey. 

The  local  surveyor  will  encounter  such  fragmentary  surveys. 
What  we  say  here  is  only  a  hint  of  what  he  may  find  and  he 
must  use  his  best  judgment  in  retracing  the  original  lines.  The 
government  notes  should  be  full.  These  the  surveyor  must 
have  and  in  addition  he  should  possess  a  copy  of  the  plat  of 


§  127 


SURVEYING   AND   BOUNDARIES 


102 


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IO3  SUBDIVIDING    TOWNSHIPS    AND    OBSERVATIONS       §    127 

the  second  survey  of  the  township  or  so  much  thereof  as  is 
necessary  to  show  all  of  the  original  survey  in  connection  with 
the  section  he  is  subdividing.38 

It  is  the  hope  of  the  author  that  the  suggestions  and  hints 
herein  given  will  enable  the  professions  to  fully  understand  the 
subdivisions  of  the  various  kinds  of  townships  which  will  be 
found  in  actual  practice.  As  herein  suggested  such  under- 
standing is  necessary  in  making  local  surveys. 

88Manual   (1919)    §  224, 


CHAPTER  VII 


SUBDIVISION   OF  SECTIONS 


To  subdivide  quarter-section 
lying  along  north  and  west 
boundaries  of  township. 

Re-establishment  of  m  e- 
ander  corners. 

Proportionate  measurement 
more  reliable  than  adjust- 
ment of  chain. 

Resurvey  must  be  initiated 
and  finished  at  certain  and 
known  points. 

Irregular  and  fractional 
sections. 


Sec.  Sec. 

128.  Generally.  137. 

129.  Information    from    land    of- 

fice. 

130.  Boundaries  of   section.  138. 

131.  Subdividing    a     section     into 

quarters.  139- 

132.  Closing    lines    of    north    and 

west  sides  of  township. 

133.  Double    sets    of    corners    on     140. 

township  and  range  lines. 

134.  Subdividing     fractional     sec- 

tions. 141. 

135.  Subdivision     of     quarter-sec- 

tion into  quarters. 

136.  To    establish    quarter-quarter 

corner,  north  or  west  of 
center  of  section  on  north 
or  west  sides  of  township. 


§  128.  Generally. — By  far  the  greater  part  of  work  in 
rural  districts  of  local  surveyors  consists  in  the  subdivision  of 
sections  originally  surveyed  under  the  direction  of  the  sur- 
veyor-general. Much  of  what  we  could  well  embrace  under 
this  title  will  be  separately  treated  under  the  head  of  "Excess 
and  deficiency."1  Also  closely  related  to  the  subdivision  of 
sections  is  the  chapter  on  "Restoration  of  Lost  or  Obliterated 
Corners."2  The  reader  is  referred  to  those  chapters  for  a  more 
detailed  treatment  of  the  subject. 

Under  Chapter  XV  we  quote  largely  from  the  rules  and 
regulations  of  the  general  land  office  for  the  "Restoration  of 


104 


ch.  X. 
2Post  ch.  XV. 


IO5  SUBDIVISION   OF  SECTIONS  §    130 

Lost  or  Obliterated  Corners  and  the  Subdivision  of  Sections." 
The  reader  is  requested  to  carefully  study  that  chapter  and 
become  familiar  with  such  rules  and  regulations.  There  should 
be  no  guess  work  in  the  subdivision  of  a  section.  It  should 
always  be  run  out  according  to  law.  The  practice  for  the 
surveyor  to  disregard  the  law  and  the  rules  "because  the  in- 
terested parties  so  agreed,"  is  by  all  means  to  be  discouraged. 
Under  no  circumstances  should  the  surveyor  encourage  such 
practice  as  it  always  leaves  the  section  improperly  subdivided, 
and  is  liable  to  produce  confusion  among  surveyors  and  land 
owners,  in  years  to  come,  and  may  be  fruitful  of  litigation. 

§  129.  Information  from  land  office. — Should  the  surveyor, 
in  practice,  have  a  problem  not  covered  in  this  work  and 
desire  information  as  to  the  proper  procedure  he  should  com- 
municate with  the  commissioner  of  the  general  land  office  for 
advice  thereon.  In  such  inquiry  he  should  give  an  accurate 
description  of  the  section,  town  and  range,  with  a  clear  state- 
ment of  the  particular  point  upon  which  information  is  desired. 
Furthermore  he  should  send  a  diagram  showing  conditions, 
giving  the  distances  in  chains  and  links — not  feet.  Give  that 
office  all  the  information  within  the  surveyor's  knowledge  and 
it  will  receive  attention. 

§  130.  Boundaries  of  section. — Before  attempting  to  sub- 
divide a  section,  the  surveyor  should  know  the  actual  boun- 
daries of  the  section.  He  can  not  legally  subdivide  a  section 
without  such  information.  He  must  know  the  location  of  the 
section  and  quarter-section  corners.  If  any  of  such  corners 
are  lost  or  obliterated  he  must  first  proceed  to  re-establish  such 
corners  in  the  manner  provided  by  law.3 

The  procedure  should  be:  First,  Locate  all  section  and 
quarter-section  corners  not  lost  or  obliterated;  Second,  Re-es- 
tablish such  section  and  quarter-section  corners  as  are  lost  or 
obliterated ;  Third,  Run  the  quarter-lines  each  way,  thus  fixing 

3Post  ch.  XV. 


§    131  SURVEYING  AND  BOUNDARIES  106 

the  center  of  the  section;  Fourth,  Establish  the  1/8  and  1/16 
section  corners  in  the  manner  provided  herein;  Fifth,  Sub- 
divide a  quarter-section  by  connecting  the  1/8  and  1/16  sec- 
tion corners  by  straight  lines.  The  point  of  intersection  of 
these  lines  will  be  the  center  of  the  quarter-section.  Still 
smaller  subdivisions  may  be  made  in  a  similar  manner,  first 
establishing  the  proper  corners. 

§  131.  Subdividing  a  section  into  quarters. — The  statutes 
of  the  United  States  provide  that  a  section  shall  be  subdivided 
into  quarter-sections  by  "running  straight  lines"  from  the 
established  quarter  corner  to  the  opposite  corresponding  es- 
tablished quarter-corner.  The  intersection  of  these  lines  shall 
be  the  center  of  the  section.4  It  will  be  noted  that  the  rule 
applies  only  to  regular  sections  and  not  to  sections  in  frac- 
tional townships,  "where  no  such  opposite  corresponding  cor- 
ners have  been  or  can  be  fixed."  In  the  latter  case  the 
so-called  quarter-lines  or  "boundary  lines  shall  be  ascertained 
by  running  from  the  established  corners  due  north  and  south 
or  east  and  west  lines,  as  the  case  may  be  to  the  water  course, 
Indian  boundary  lines,  or  other  external  boundary  of  such 
fractional  township."5 

While  the  statutes  provide  that  these  lines  shall  be  run  "due" 
north  and  south  or  east  and  west,  as  the  case  may  be,  that 
result  is  usually  obtained  by  running  a  mean  between  the  east 
and  west  boundaries  of  the  section  for  the  north  and  south 
quarter  line  and  by  running  a  mean  between  the  north  and 
south  boundaries  of  the  section  for  the  east  and  west  quarter- 
line  so-called.6  But  if  the  section  is  lacking  in  one  of  the  sides 
then  such  so-called  quarter  line  will  be  run  parallel  to  the 
existing  and  known  side.7 

§  132.     Closing  lines  of  north  and  west  sides  of  township. — 

*Rev.  Stat.  §  2396;  Comp.  Stat.  §    §  4804;  post  ch.  XIX. 
4804;  ante  §§  59,  61  and  62.  6Post  ch.  XIX. 

«Rev.  Stat.  §  2396;  Comp.  Stat.       7Post  ch.  XIX. 


IO7  SUBDIVISION  OF  SECTIONS  §    134 

The  quarter-section  corners  of  lines  closing  in  the  north  and 
west  sides  of  a  township  were  planted  by  the  government  sur- 
veyors at  40  chains  to  the  north  or  west  of  the  last  sec- 
tion corner.  The  excess  or  deficiency  is  thus  thrown  on  the 
half  mile  next  to  the  township  or  range  line.  Should  such 
quarter-section  corner  be  lost  it  will  be  re-established  at  40 
chains,  original  measure,  north  or  west,  as  the  case  may  be,  of 
the  last  interior  section  corner.  This  is  found  by  a  propor- 
tionate measurement  of  the  whole  section  line.  If  the  recent 
and  government  measures  agree  then  there  would  be  no 
necessity  of  an  apportionment  as  the  corner  would  then  be 
placed  40  chains  from  the  last  interior  section  corner.8 

§  133.  Double  sets  of  corners  on  township  and  range 
lines. — In  those  townships  where  there  are  double  sets  of  sec- 
tion corners  on  the  town  and  range  lines  the  quarter-corners 
for  the  sections  south  of  the  township  line  and  east  of  the 
range  line  were  not  established  in  the  field  by  the  government 
surveyors.  In  subdividing  these  sections  the  quarter-corners 
will  be  placed  at  a  proportional  distance  north  or  west  of  the 
last  interior  section  corner  as  provided  in  the  preceding 
paragraphs,  remembering  that  the  distance  north  or  west  of 
such  interior  section  corner  should  be  40  chains,  original 
measure,  not  recent  measure.9  Under  present  rules  double 
corners  seldom  occur  except  on  base  and  correction  lines,  but 
double  corners  are  usually  found  on  those  lines.  On  the  base 
line  only  where  that  line  runs  through  the  tract  to  be  surveyed 
and  not  along  the  south  side  thereof.  But  even  so,  double 
corners  may  be  found  thereon  after  a  survey  of  the  tract  lying 
south. 

§  134.  Subdividing  fractional  sections. — The  subdivision 
of  fractional  sections  in  a  fractional  township,  where  the  di- 
visional line  has  but  one  end  fixed  and  certain,  is  accomplished 

8Post  ch.  XIX. 
9Post  ch.  XIX. 


§    135  SURVEYING   AND   BOUNDARIES  IO8 

under  a  special  provision  of  the  statutes.  This  rule  provides 
that  the  division  line  shall  run  due  north,  south,  east  or  west, 
as  the  case  may  be,  to  the  reservation,  Indian  or  other  boun- 
dary.10 This  rule  should  be  followed  literally  if  the  lines  of  a 
section  were  true  lines,  but,  in  practice,  this  is  seldom  the  case. 
Hence,  the  practice,  as  we  have  seen,  is  to  run  "mean  lines." 
That  is,  the  line  required  to  be  run  should  be  a  mean  between 
the  east  and  west  or  north  and  south  boundaries  of  the  sec- 
tion, where  such  sides  are  known,  and  there  are  two  sides. 
But  it  often  happens  that  one  of  the  boundaries  is  lacking — 
it  may  be  in  a  lake  or  cut  off  by  a  reservation.  In  that  event 
the  division  line  should  be  run  parallel  to  the  known  boundary. 
This  will  always  be  done  where  there  is  no  opposite  section 
line.11  Figs.  104-1043. 

§  135.  Subdivision  of  quarter-section  into  quarters. — The 
surveyor  having  first  established  the  center  of  the  section  in 
the  manner  provided  by  law,  will  proceed  to  establish  the  two 
1/8  and  1/16  corners  of  the  quarter-section  to  be  subdivided. 
As  heretofore  noted,  these  exterior  corners  will  be  established 
midway  in  a  direct  line,  between  the  quarter-section  and  sec- 
tion corner.  The  interior  corners  (1/8  or  1/16)  of  an  interior 
section  will  be  established  midway  in  a  direct  line  between  the 
center  of  the  section  and  the  quarter-corner.  These  corners 
are  usually  termed  quarter-quarter  section  corners.  Should 
the  quarter-section  to  be  subdivided  be  in  the  last  half  mile  of 
a  section  bordering  on  the  north  or  west  sides  of  a  township, 
a  different  rule  must  be  followed.  In  that  event  such  quarter- 
quarter  corner  will  be  placed  20  chains  proportionate  measure- 
ment to  the  north  or  west  of  the  quarter-section  corner.  Figs. 
1 06- 1 07." 

10Rev.  Stat.  §  2396;  Comp.  Stat.  § 
4804. 

"Post  ch.  XIX. 
i2Post  ch.  XIX. 


109  SUBDIVISION  OF  SECTIONS  §    138 

§  136.  To  establish  quarter-quarter  corner,  north  or  west 
of  center  of  section  on  north  or  west  sides  of  township. — It 

will  be  seen  that  this  presents  a  different  and  peculiar  prob- 
lem, for  the  reason  that  that  part  of  the  quarter  lying  north  or 
west  of  the  center  of  such  section  was  never  measured  by  the 
government  surveyors  and  is  not  given  in  the  field-notes.  The 
surveyor  must,  therefore,  compute  such  distance  by  making  it 
a  mean  between  the  two  corresponding  sides  of  the  section  of 
which  such  distance  is  sought.  Having  found  such  mean 
(government  measure),  he  will  establish  sucK  quarter-quarter 
corner  by  proportionate  measurement  as  in  other  cases.  It  is 
believed  that  subdivision  80  of  the  Circular  of  the  general 
land  office  on  "Restoration  of  Lost  or  Obliterated  Corners 
and  Subdivision  of  Sections/'  makes  this  imperative.13  Figs. 
106-107. 

§  137.  To  subdivide  quarter  section  lying  along  north  and 
west  boundaries  of  township. — The  quarter-quarter  corners 
having  been  established  in  the  manner  provided  in  the  pre- 
ceding section,  the  surveyor  will  proceed  in  the  manner  pro- 
vided for  the  subdivision  of  a  quarter  of  an  interior  section, 
i.  e.,  he  will  run  straight  lines  between  opposite  corresponding 
quarter-quarter  section  corners.  The  intersection  of  the  lines 
thus  run  will  be  the  corner  common  to  the  four  quarter-quarter 
sections.  In  locating  quarter-quarter  corners  along  township 
and  range  lines  where  double  or  tripple  corners  were  estab- 
lished the  surveyor  will  make  certain  of  the  corners  of  the 
particular  section.  Figs.  io6-iO7.14 

§  138.  Re-establishrnent  of  meander  corners. — In  the  sub- 
division of  sections  made  fractional  by  a  body  of  water  which 
was  meandered,  and  along  which  meandered  courses  were 
established,  the  surveyor  will  frequently  find  it  necessary  to 

13Post  ch.  XIX. 
"Post  ch.  XIX. 


§    139  SURVEYING  AND  BOUNDARIES  IIO 

re-establish  lost  or  obliterated  meander  corners.  This  is  not 
always  an  easy  matter,  and,  at  best,  uncertain,  in  the  absence 
of  evidence  of  those  who  had  known  the  location  of  the  corner 
before  it  was  lost  To  re-establish  such  lost  corner  the  sur- 
veyor should  first  carefully  chain  "at  least  three  of  the  section 
lines  between  known  corners  of  the  township  within  which  the 
lost  corner  is  to  be  relocated,"  say  the  instructions,  "in  order 
to  establish  the  proportionate  measurement  to  be  used."15  In 
retracing  such  original  lines  the  surveyor  should  ascertain  the 
real  course  used  by  the  original  surveyor.  If  such  surveyor 
reported  meridional  lines  as  running  due  north  and  it  is  found 
that  the  average  course  of  the  three  known  lines  is  north  i 
degree,  and  10  minutes  east,  this  course  should  be  considered 
in  restoring  an  extinct  north  line  to  a  meander  corner.16 
These  preliminary  requirements  must  not  be  omitted,  since 
they  give  the  only  data  by  which  the  fractional  section  line 
can  be  measured.  "The  missing  meander  corner  will  be  re-es- 
tablished," continue  the  rules,  "on  the  section  or  township 
line  retraced  in  its  original  location,  by  proportionate  meas- 
urement found  by  the  preceding  operations,  from  the  nearest 
known  corner  on  such  township  or  section  line,  in  accordance 
with  the  requirements  of  the  original  field-notes  of  survey."17 
§  139.  Proportionate  measurement  more  reliable  than  ad- 
justment of  chain. — The  old  practice  required  the  surveyor  to 
adjust  his  chain  to  suit  the  former  measure,  but  recent  instruc- 
tions require  the  surveyor  to  pursue  the  "proportionate  meas- 
urement" practice.  This  will  be  found  more  desirable  and 
more  accurate.  It  is  seldom  that  the  recent  and  former  meas- 
urements will  agree.  Such  differences  occur  in  a  variety  of 
ways,  such  as  using  a  chain  too  long  or  too  short;  the  failure 

15Restoration    of    Lost    or    Ob-  16Restoration  of  Lost  or  Obliter- 

literated    Corners,    §    67;    post   ch.  ated  Corners,  §  67,  Post  ch.  XV. 

XIX.  "Restoration  etc.     Corners  §  68; 

,  post  ch.  XV. 


Ill  SUBDIVISION  OF  SECTIONS  §    14! 

to  level  up  in  measuring  an  incline;  by  carelessness  in  setting 
pins;  by  failure  to  measure  in  a  direct  line  or  by  an  error  in 
entering  or  transcribing  the  notes.  The  surveyor  should 
avoid  all  of  these  errors  in  retracement  as  in  the  original 
survey.  "By  proportionate  measurement  of  a  part  of  a  line 
is  meant,"  the  instructions  say,  "a  measurement  having  the 
same  ratio  to  that  recorded  in  the  original  field-notes  for 
that  portion,  as  the  length  of  the  whole  line  by  actual  resurvey 
bears  to  its  length  as  given  in  the  record."18  For  manner  of 
making  this  computation  see  subsequent  chapter.19 

§  140.  Resurvey  must  be  initiated  and  finished  at  certain 
and  known  points. — It  will  be  seen  that  a  resurvey  must  be 
initiated  at  some  certain  and  known  point,  and  it  must 
likewise  be  finished  at  some  certain  and  known  point. 
Such  points  being  fixed  and  known,  the  original  measure- 
ment known,  the  principal  distances  between  different  points 
on  the  same  line  being  known,  the  surveyor  can,  by  a 
proportionate  measurement,  re-establish  such  points  with 
reasonable  accuracy.  If  such  intermediate  points  are  known 
their  locations  can  not  be  changed.  If  lost  and  there  is  no 
evidence  as  to  their  former  location  then  the  regulations  re- 
quire their  relocation  by  proportionate  measurements.  A 
corner  should  not  be  given  up  as  lost  until  all  traces  and  evi- 
dences of  its  former  location  have  been  obliterated.  If  the 
surveyor  will  follow  these  instructions,  in  the  subdivision  of 
sections,  his  work  will  be  in  the  best  possible  shape  to  with- 
stand assaults  on  its  correctness. 

§  141.  Irregular  and  fractional  sections. — In  the  subdivi- 
sion of  fractional  sections  very  irregular  quarters  frequently 
result.  But  the  rule  that  to  subdivide  a  section  into  quarters 
the  surveyor  should  run  straight  lines  from  the  quarter-corner 

18Restoration,  etc.,  §  83;  Post  ch. 
XV. 

19Post  ch.  XV. 


§ 


SURVEYING  AND  BOUNDARIES 


112 


on  the  south  to  the  quarter  corner  on  the  north,  and  from  the 
quarter-corner  on  the  east  to  the  quarter-corner  on  the  west 
must  be  followed.  Fig.  18.  Referring  to  this  figure,  it  will 


Fiq.18 


be  noted  that  all  of  the  section  and  quarter-section  corners, 
except  the  south-quarter  corner,  were  known.  Required  to 
subdivide  the  section  into  quarters.  The  surveyor  should  first 
establish  the  south-quarter  corner  on  a  direct  line  midway 
between  the  southeast  corner  and  southwest  corner  of  the  sec- 
tion. He  should  then  run  the  quarter  lines  according  to  the 
rule  as  set  forth  above.  The  several  tracts  of  land  will  be 


113  SUBDIVISION   OF  SECTIONS  §    14! 

described  as  quarter-sections  unless  the  government  plat 
designates  those  tracts  as  lots.  These  several  quarters  will  be 
irregular  and  all  will  be  less  than  one  hundred  and  sixty  acres, 
where  the  sides  fall  short  of  the  required  distances.  Or  if  the 
sides  be  greater  than  the  required  distances  the  quarters  may 
be  more  than  one  hundred  and  sixty  acres.20 

20Jones  v.   Wellcome,   141    Minn. 
352,  170  N.  W.  224. 


CHAPTER  VIII 

FRACTIONAL  LOTS,   NUMBERING  AND  AREAS 

Sec.  Sec. 

1 41  a.  Generally.  151.  Fractional     sections     border- 

142.  Fractional  lots,  what  are?  ing  on  reservations. 

143.  Formed  by  draftsmen  in  of-  152.  Mining  or  other  claims. 

f ice.  153.     Uniform  system  of  numbering 

144.  Rules    for    subdividing    frac-  lots. 

tional  sections.  154.  In  irregular  surveys. 

145.  Boundaries  of  fractional  lots.  155.  Areas  in  certain  cases  omit- 

146.  Townsites.  ted. 

147.  Islands.  156.  Areas  of  lots. 

148.  Lots     in     section     in     north  157.  Areas  of  lots  in  section  six. 

boundary  of  township.  158.     Areas  of  tracts   forty  chains 

149.  Lots     in     sections     in     west  long  north   or  west   boun- 

boundary  of  township.  dary. 

150.  Lots  in  section  six.  159.    In  conclusion. 

§  1410.  Generally. — Surveyors  and  members  of  the  bar 
are  not  always  familiar  with  the  method  pursued  by  the  gov- 
ernment in  parting  off  and  numbering  the  lots  in  fractional 
sections.  That  a  set  of  uniform  rules  has  been  laid  down  for 
the  guidance  of  the  government  officials  whose  duty  it  is  to 
part  off  and  number  such  lots  does  not  seem  to  have  been  much 
considered  by  local  surveyors.  To  the  end  that  local  surveyors 
and  the  bar  may  have  a  thorough  knowledge  of  the  instruc- 
tions sent  out  by  the  land  department  on  this  important  sub- 
ject, we  are  devoting  this  chapter. 

It  has  been  thought  best  to  quote  freely  from  such  instruc- 
tions as  are  found  in  the  "Manual  of  Surveying  Instructions 


114 


115  FRACTIONAL  LOTS,    NUMBERING  AND  AREAS         §    142 

for  the  Survey  of  the  Public  Lands,  (1902)."  A  careful 
study  of  the  chapter  will  be  found  instructive  and  useful. 
Local  surveyors  should  be  fully  informed  as  to  this  branch  of 
their  work.  We  would  draw  the  reader's  attention  to  the 
several  illustrations  to  which  reference  is  made.  These  illus- 
trations make  plain  the  manner  of  parting  off  and  numbering 
the  lots  of  fractional  sections  under  all  kinds  of  conditions. 

All  sections  bordering  on  the  north  or  west  sides  of  a  town- 
ship are  fractional ;  likewise  sections  bordering  on  a  meandered 
lake  or  through  which  a  meandered  stream  flows  are  fractional. 
It  sometimes  happens  that  sections  bordering  on  the  south  or 
east  sides  of  a  township  are  fractional.  This  is  the  case  where, 
owing  to  local  conditions,  the  excess  or  deficiency  is  thrown  on 
the  south  or  east  sides  of  the  township.1  So  also,  townships 
bordering  on  or  containing  reservations,  national  parks, 
reserves  or  townsites  are  fractional  and  contain  fractional  sec- 
tions.2 Such  fractional  sections  are  platted  into  lots,  which 
are  numbered  as  directed  in  this  chapter,  and  sold  by  such 
numbers.  The  platting  and  numbering  of  the  lots,  and  also 
the  computations  of  the  areas  are  done  in  the  office. 

§  142.  Fractional  lots,  what  are? — Fractional  lots  are 
those  irregular  tracts  of  land  designated  on  the  plats  of  sur- 
veys by  the  land  department  of  the  government.  They  are  to 
be  found  only  in  fractional  sections  or  fractional  tracts.  They 
are  formed,  either,  (a),  by  the  excess  or  deficiency  thrown  on 
the  exterior  sections  of  a  township;  (b),  By  meandered  lakes, 
ponds  or  rivers  which  may  cover  a  part  of  a  section;  (c),  By 
a  recent  survey  approaching  a  former  government  survey 
where  the  sections  adjacent  to  such  former  survey  are  either 
in  excess  or  fall  short  of  full  sections;  (d),  By  the  surveyed 
sections  bounded  by  a  reservation,  national  park,  mining,  or 

iAnte  §§  116-118. 
2  Ante  §§  116-118. 


§    143  SURVEYING   AND   BOUNDARIES  1 16 

other  private  claim;  (e),  By  irregular  tracts  or  strips  of  land 
bounded  on  a  lake  or  river  and  surveyed  under  special  instruc- 
tions of  the  land  department. 

§  143.  Formed  by  draftsmen  in  office. — The  subdivision  of 
the  various  fractional  sections  designated  in  the  preceding 
section,  except  (e),  is  performed  by  the  draftsmen  in  the  office 
to  which  reports  and  notes  are  sent,  and  not  by  the  surveyor 
who  did  the  field  work.  In  so  subdividing,  forming  and 
numbering  the  lots,  the  officials  are  required  to  use  their  best 
skill  and  judgment  to  "arrange  the  lots  in  the  most  convenient 
and  equitable  form  for  both  the  purchaser  and  the  govern- 
ment."3 The  idea  is  to  divide  the  shore  line  along  a  navigable 
stream  or  lake  so  as  to  give  as  many  lots  with  a  substantial 
water  frontage  as  the  situation  will  admit. 

§  144.     Rules  for  subdividing  fractional  sections. — As  an 

aid  to  the  officials  who  do  the  subdividing  work  the  govern- 
ment has  laid  down  the  following  rules : 

(a),  Avoid  needlessly  small  subdivisions; 

(b),  Avoid  giving  to  lots  a  long  shore  line  with  small  width ; 

(c),  Apportion  the  privilege  of  water  front  among  as  many 
lots  as  regular  division  limits  will  permit; 

(d)',  Let  the  longer  direction  extend  back  from  the  shore 
rather  than  along  the  water; 

(e),  Instead  of  making  as  many  full  forty  acre  tracts  as 
possible,  leaving  small  fractions  of  a  few  acres  along  the  shore 
or  other  boundary,  attach  such  marginal  strips  to  the  forties, 
making  tracts  of  forty-five,  fifty,  to  fifty-five  acres ; 

(f),  But  if  a  fractional  lot  would  equal  or  exceed  sixty 
acres  it  should  be  divided; 

(g),  No  lot  should  be  partly  in  two  sections.4 

§  145.    Boundaries  of  fractional  lots. — As  to  the  designa- 

3Manual   (1902)   230. 
*Manual   (1902)   231-2. 


II/  FRACTIONAL  LOTS,    NUMBERING   AND  AREAS         §    145 

tion  of  the  different  tracts  it  is  the  rule  that:  (a),  lots  should 
be  laid  down,  if  possible,  so  as  to  give  each  lot  a  specified 
"word  description,"  according  to  its  relative  position  in  the 
fractional  section.  Or  (b)  by  a  number,  in  all  cases  where  the 
lot  can  not  properly  be  designated  as  a  quarter-quarter,  (c), 
Fractional  lots,  not  susceptible  of  being  described  according 
to  relative  local  position  should  be  numbered  in  a  regular 


RqlQ 

series.  Fig.  19.  Note  therein  the  numbering  of  the  lots  under 
different  conditions.  The  reader  will  specially  note  that  there 
are  two  lots  on  Ivy  Island.  Lot  4  thereon  is  a  part  of  section 
18,  and  Lot  i  thereon  is  a  part  of  section  19.  Lot  5  of  sec- 


§    146  SURVEYING  AND  BOUNDARIES  Il8 

tion  1 8,  covers  the  entire  Diamond  Rock  Island.  It  will  be 
noted  the  south  boundary  of  section  18  runs  through  Ivy 
Island.  Hence  there  must  be  more  than  one  lot  on  that  island 
under  the  rules  above.5 

§  146.  Townsites. — In  the  event  the  government  surveyors 
come  across  a  townsite  or  city  located  on  a  body  of  water,  the 
lots  should  comprise  no  part  of  the  townsite  or  city  but  should 
be  bounded  by  the  exteriors  of  the  city  or  townsite.  The  areas 
of  such  lots,  excluding  the  city  or  townsite,  properly  numbered, 
should  be  given.  Fig.  19.  Observe  the  townsite  on  said 
figure.  It  is  in  section  18.  There  are  three  lots,  viz.,  I,  2 
and  3.  No  part  of  these  lots  is  in  the  townsite. 

§  147.  Islands. — Where  islands  are  found  in  a  lake  and 
surveyed,  they  should  be  tied  to  the  most  convenient  meander 
corner.  The  lot,  or  lots,  of  such  islands  should  be  numbered 
consecutively  with  the  other  lots  of  the  section  in  which  such 
island  may  be  situated.  Fig.  19.  If  in  more  than  one  section 
the  part  in  each  section  should  be  so  numbered  as  to  that  sec- 
tion. By  referring  to  that  figure  it  will  be  noted  that  Diamond 
Rock  Island  is  tied  to  the  meander  corner  at  N.  W.  corner  of 
Lot  2  in  section  19.  Also  that  Ivy  Island  is  tied  to  the  mean- 
der corner  at  the  southwest  corner  of  Lot  3  in  section  17. 
Note  also  the  two  lots  on  Ivy  Island. 

§  148.  Lots  in  section  in  north  boundary  of  township. — 
The  lots  in  a  section  of  the  north  tier  of  a  township  should  be 
numbered  consecutively  from  east  to  west  in  each  section. 
Fig.  20.  Observe  that  lot  I  is  situated  in  the  northeast  corner 
of  the  section  and  the  numbers  are  consecutive  to  number  4  in 
the  northwest  corner  of  the  section.6 

'Manual    (1902)   233. 
6Manual   (1902)  233. 


119  FRACTIONAL   LOTS,    NUMBERING   AND   AREAS          §    150 


§  149.     Lots  in  sections  in  west  boundary  of  township. — 

The  lots  in  sections  in  west  boundary  of  a  township  should 
be  numbered  progressively  from  north  to  south.     Fig.  21. 


80 


6 


80 


Zl   Acres 


Fiq.20 


Note  that  the  lots  are  numbered  from  north  to  south  and  that 
number  i  is  in  the  northwest  corner  of  section  and  that  num- 
ber 4  is  in  the  southwest  corner  of  section.7 

§  150.  Lots  in  section  six. — Owing  to  the  position  of  lots 
in  section  six  a  different  rule,  in  a  way,  prevails,  though  it  will 
be  seen  to  be  a  combination  of  the  rules  for  numbering  the 

7Manual    (1902)    233. 


§  ISO 


SURVEYING  AND  BOUNDARIES 


120 


lots  in  sections  on  both  the  north  and  west  boundaries  of  a 
township.  In  such  cases  the  lots  are  numbered  progressively 
from  the  northeast  corner  to  the  southwest  corner  thereof. 


1 

36.  .45 

t 
36.55 

•* 

n 

3 

—  'j 

\J 

36.59 

626 

2.4 

4 
36.67 

Rq.21 


Lot  i  will  be  found  in  northeast  corner  and  lot  7  in  southwest 
corner  of  the  section.  Fig.  22.  In  all  such  sections  the  south- 
east quarter  of  the  northwest  quarter  will  contain  forty  acres 
in  area.8 


"Manual   (1902)  233. 


121  FRACTIONAL  LOTS,    NUMBERING  AND  AREAS         § 


§  151.     Fractional   sections   bordering   on   reservations. — 

Fractional  lots  in  sections  bordering  on  reservations,  parks, 


•^ 

3 

a                i 

35.54 

40.03 

40.06          40.09 

5 
35.53 

40    ] 
C 

80 

% 
> 

6 
35.65 

$    GZL 

67                             j 

7 
35.71 

SO 

Fiq.22 


etc.,  will  contain  no  part  of  such  reservations  or  parks  but  will 
be  bounded  thereby  and  will  be  numbered  progressively  pur- 
suant to  the  rules  given  herein.  Fig.  23.  Observe  that  num- 
ber i  is  in  northeast  corner  of  section  and  the  numbers  follow 
progressively  to  the  west. 


§ 


SURVEYING   AND   BOUNDARIES 


122 


§  152.  Mining  or  other  claims. — In  cases  where  mining  or 
other  irregular  claims  were  taken  up  prior  to  the  general 
survey,  that  part  of  the  area  of  such  claim  or  claims,  lying 


N  ati  o  n  al 
Park 


Fiq.23 


within  a  section,  were  taken  from  that  particular  section  and 
the  remainder  of  the  particular  subdivision  made  into  lots, 
area  computed  and  number  given.  Should  this  happen  to  be 


123  FRACTIONAL  LOTS,   NUMBERING  AND  AREAS         §    152 


in  a  section  otherwise  fractional,  such  lots  will  be  numbered 
progressively  after  the  regular  fractional  lots.     Figs.  2025.* 


Rq.24- 


Observe  in  Fig.  20  the  manner  of  running  out  and  numbering 
the  lots  adjacent  to  the  mining  claims  therein.    If  these  claims 
9Manual   (1902)  234. 


§    153  SURVEYING  AND  BOUNDARIES  124 

were  in  a  section,  not  otherwise  fractional,  lots  5  and  6  would 
be  numbered  i  and  2  respectively. 

§  153.  Uniform  system  of  numbering  lots. — It  will  be  ob- 
served from  what  has  already  been  said  that  the  government 
requires  a  uniform  system  of  numbering  lots  under  similar 
conditions.  The  instructions  of  the  land  department  provide : 
"To  secure  a  uniform  system  for  numbering  lots  of  fractional 
sections,  including  those  above  specified,10  imagine  the  section 
divided  by  three  equidistant  parallel  latitudinal  lines  into  four 
strips  or  tiers,  numbered  from  north  to  south ;  then,  beginning 
with  the  eastern  lot  of  the  north  tier,  call  it  No.  i,  and  con- 
tinue the  numbering  west  through  the  tier,  then  east  in  the 
second,  west  in  the  third,  and  east  in  the  fourth  tier.  A  lot 
extending  north  and  south  through  two,  or  parts  of  two  tiers, 
will  be  numbered  in  the  tier  containing  its  greater  area.  In 
case  any  tier  is  without  numbered  lots,  the  numbering  will  be 
continued  in  the  next  tier  to  the  south."  Figs.  19  and  24. 
The  rules  go  on  to  say  that;  "This  method  of  numbering  will 
apply  to  any  part  of  a  section,  regardless  of  the  relative  situa- 
tion of  a  part  or  parts  surveyed  and  lotted  under  prior  con- 
tract; in  this  same  case  the  lot  numbers  will  be  a  continua- 
tion of  the  series  already  initiated.  A  section  that  has  been 
partly  surveyed  at  different  times  should  have  no  duplication 
of  lot  numbers."11 

§  154.  In  irregular  surveys. — In  those  cases  of  irregular 
surveys  where  the  length  of  a  township  from  north  to  south 
exceeds  the  lawful  length  of  480  chains,  or  the  width  from 
east  to  west  exceeds  480  chains  minus  the  proper  allowance 
for  convergency  of  meridians,  to  such  an  extent  as  to  require 
two  or  more  tiers  of  lots  along  the  north  boundary,  or  two  or 
more  ranges  of  lots  along  the  west  boundary,  as  the  case  may 

10Ante  §§  I4ia-i53  Inclusive. 
"Manual  (1902)  234. 


125  FRACTIONAL  LOTS,   NUMBERING  AND  AREAS         §    154 


be,  the  entire  north  or  west  portions  of  such  sections  beyond 
the  quarter-corner  are  required  to  be  lotted.     Each  such  lot 


13 


will  be  assigned  its  proper  number.    The  area  of  each  such 
lot  shall  be  given  on  the  plat. 

So  also,  in  case  the  length  or  width  of  the  township  falls 
so  far  short  of  the  legal  dimensions  as  to  eliminate  the  north 


§    155  SURVEYING  AND  BOUNDARIES  126 

or  west  half  of  any  section  situated  as  above,  that  part  of  the 
section  remaining  will  be  treated  in  a  similar  manner.  That 
is  it  will  be  lotted  and  the  lots  properly  numbered  and  entered 
on  the  plat.12 

§  155.  Areas  in  certain  cases  omitted. — The  instructions 
require  that  in  a  regular  township  the  southeast  quarter  of 
northwest  quarter  of  section  6  shall  have  its  required  area  of 
forty  acres  inserted  in  all  cases.  The  half-quarter  sections  in 
north  tier  and  west  range  of  sections  shall  have  the  proper 
area  of  eighty  acres  inserted.  The  areas  of  quarter-sections 
will  be  omitted,  except  when  two  lines  of  legal  subdivisions  of 
either  one  hundred  and  sixty,  eighty,  or  forty  acre  tracts  inter- 
sect each  other  on  or  so  near  a  meander  or  boundary  line  that 
the  general  inaccuracies  of  drawing  would  leave  the  area  of 
said  tracts  in  doubt,  the  plats  will,  in  such  cases,  for  clearness, 
give  the  proposed  areas  of  such  quarter,  half-quarter,  and 
quarter-quarter  sections.  Figs.  20,  21,  22,  26,  and  27.13 

§  156.  Areas  of  lots. — The  government  has  provided  a 
method  of  computation  of  the  areas  of  the  lots  in  sections  under 
various  circumstances.  It  will  be  assumed  that  in  regular 
sections,  other  than  section  six,  that,  in  excess  of  the  regularly 
subdivided  four  hundred  and  eighty  acres  in  a  section,  there 
will  be  a  trapezoid  along  the  north  or  west  sides  thereof  of  a 
width  of  approximately  20  chains  and  a  length  of  80  chains. 
Each  of  said  strips  will  be  divided  into  four  lots  by  drawing 
lines  every  20  chains,  parallel  to  the  ends  of  the  tracts.  For 
purposes  of  computation  these  will  be  regarded  as  parallel  to 
each  other.  With  exception  of  section  six  the  south  boundaries 
of  sections  along  north  side  of  township  will  be  assumed  to 
be  80  chains.  When  these  conditions  obtain  the  areas  of  lots 

12Manual   (1902)  235. 
"Manual   (1902)   236-7. 


127  FRACTIONAL  LOTS,    NUMBERING  AND  AREAS         §    156 

will  be  determined  in  this  manner:  "Divide  the  difference 
between  the  widths  of  the  ends  of  the  tract  by  4 ;  if  3  remains, 
increase  the  hundredth^  figure  of  the  quotient  by  a  unit;  in 


all  other  cases  disregard  the  fraction;  call  the  quotient  thus 
obtained,  "d" ;  then  take  the  end  widths  of  the  tract  in  chains 
and  decimals  of  a  chain,  the  areas  of  the  lots,  in  acres  will  be : 
Of  the  smallest  lot;  twice  the  width  of  the  lesser  end,  plus 
"d";  of  the  largest  lot;  twice  the  width  of  the  greater  end, 
minus  "d";  of  the  smaller  middle  lot;  sum  of  the  widths  of 


SURVEYING  AND  BOUNDARIES 


128 


the  ends,  minus  "d" ;  of  the  large  middle  lot ;  sum  of  the  widths 
of  the  end,  plus  "d". 

"A  check  on  computation  may  be  had  by  multiplying  the 
sum  of  the  widths  of  the  ends  of  the  tract  by  4;  the  product 
should  agree  exactly  with  the  total  area  of  the  four  lots. 


Fiq.27 


"The  proper  application  of  the  above  rule  will  always  give 
areas  correct  to  the  nearest  hundredths  of  an  acre/'  say  the 


129  FRACTIONAL  LOTS,    NUMBERING   AND   AREAS         §    156 


advices  from  the  commissioner,  "and,  as  the  use  of  fractions  is 
entirely  avoided,  the  method  is  recommended  for  its  simplicity 
and  accuracy."14 


18.35    ] 

^    .Ji—  :-t|-  :;r_r  _••:§" 
j        80    U 

*       | 
1               -\ 

I 

i               J 
1 
3        i 
1 

T^ 

---  -  ---|       80 

4       I  ldi 
i 

18.50     ! 

78.50 


As  an  example  take  section  3 1  of  a  given  township  and  refer 
to  Fig.  28  for  data.  It  will  be  seen  that  the  width  of  the  small- 
est lot  (lot  i)  is  18.35  chains;  that  lot  4  is  the  largest  lot  and 

14Manual  (1902)  243. 


§  156 


SURVEYING  AND  BOUNDARIES 


its  width  on  the  widest  end  is  18.50  chains.  Then  we 
18.35  x  2  plus  -°4  equals  36.74  acres,  being  the  area  of 
18.50  x  2  minus  .04  equals  36.96  acres,  being  the  area 


77.7 


130 

have: 
lot  i; 
of  lot 


77.87 

Fiq.2Q 


4;  18.50  plus  18.35  minus  .04  equals  36.81  acres,  area  of  lot 
2 ;  18.50  plus  18.35  plus  -°4  equals  36.89  acres,  area  of  lot  3. 
It  will  be  seen  that  the  difference  between  the  two  ends  is  .15 ; 
divide  this  by  4,  and  we  have  a  quotient  of  3  and  3  over. 


FRACTIONAL  LOTS,    NUMBERING   AND  AREAS         §    157 


Hence,  add  .01  to  .03  we  have  .04,  which  is  represented  by 
"d."  Then  desiring  to  check  up  and  prove  the  work  we  have  : 
(18.35  plus  18.50)  x  4  equals  147.40  acres,  being  the  area  of 
the  four  lots.15  The  simplicity  of  the  rules  needs  no  demon- 
stration. 


Ar— a= 


30 


§  157.    Areas  of  lots  in  section  six.— The  areas  of  lots  5,  6 

and  7  in  Section  six  may  be  obtained  by  the  same  rule,  except 
in  those  cases  where  the  township  closes  on  a  base  line  or 
standard  parallel.  The  area  of  lot  4  in  section  6  may  be 
obtained  by  the  same  rule  where  both  meridional  boundaries 

"Manual    (1902)    243. 


§    157  SURVEYING   AND   BOUNDARIES  132 

are  80  chains  in  length.  In  the  latter  instance  lots  i,  2  and 
3  will  be  equal  and,  of  course,  each  will  contain  forty  acres. 
Figs.  29  and  30. 

In  all  cases  where  the  west  boundary  of  section  6  is  80 
chains  and  the  east  boundary  either  greater  or  less  than  80 
chains,  the  areas  of  lots  i,  2,  3  and  4  will  be  computed  in  the 
following  manner :  Refer  to  Figs.  29  and  30.  Determine  the 
difference  "q"  between  the  east  boundaries  of  lots  i  and  4  by 
the  following  proportion:  North  boundary  of  section  6  : 
Difference  of  meridional  boundaries  of  section  6  : :  60  chains 
:  q.  Then  will  east  boundary  of  lot  4  equal  east  boundary  of 
lot  i  plus  or  minus  q.  Add  q  when  the  east  boundary  of  sec- 
tion 6  is  less  than  80  chains.  Fig.  30.  But  subtract  q  when 
the  east  boundary  of  section  6  is  greater  than  80  chains.  Fig. 
29.  Now  take  1/3  of  q  and  add  it  to  the  shorter  east  boundary 
of  lot  i  or  4,  as  conditions  may  require,  and  thus  determine  one 
of  the  meridional  boundaries  of  lot  2.  Add  1/3  of  q  to  this 
sum,  and  thus  obtain  length  of  opposite  side  of  lot  2.  Com- 
pute the  areas  of  lots  i,  2  and  3  by  taking  the  sums  of  their 
respective  meridional  boundaries,  expressed  in  chains  and 
decimals  of  chains,  which  will  express  the  area  in  acres.  Figs. 
29  and  30.  Compute  the  area  of  lot  4  by  multiplying  its  mean 
width  by  its  mean  length.16 

Then  to  test  the  entire  work  take  the  sum  of  the  latitudinal 
boundaries  and  multiply  by  4.  To  this  product  add  the  area 
of  the  small  triangle  C.  A.  B.,  (Fig.  29),  if  the  east  boundary 
is  greater  than  80  chains ;  but  subtract  the  area  of  C.  A.  B.  if 
the  east  boundary  is  less  than  80  chains.  Fig.  30.  These 
operations,  if  correctly  performed  "will  give  the  true  area  of 
the  section."  This  should  agree  with  the  total  area  of  the 
legal  subdivision,  obtained  as  directed  above.17 

16Manual  (1902)  244. 
"Manual  (1902)  244. 


133  FRACTIONAL  LOTS,    NUMBERING   AND   AREAS          §    157 

Example  2.  Additional  illustrations.' — To  ;the  end  that 
the  reader  may  have  exact  knowledge  of  the  method  of  com- 
puting the  areas  of  lots  in  section  6  under  varied  conditions 
we  make  the  following  suggestions  based  upon  the  Rules  of 
the  Commissioner:  Referring  to  Figures  2Q>  and  30  the 
reader  is  directed  to — 

Compute  areas  of  lots  5,  6,  and  7  of  section  6,  as  directed 
in  this  work,  and  illustrated  by  the  example.18  Then  arrange 
the  following  proportional  statement : 

Chs.       Chs.        Chs.     Chs. 
77.75   :  0.05   ::  60.00  :  q.  q  equals  0.0386;  1/3  q  =  0.0129 

Then  proceed  as  follows: 

Chs.        Chs.        Chs. 

20.0500 — 0.0386=20.01,  being  the  east  boundary  of  lot  4 
20.0114+0.0129=20.02,   being  the  east  boundary  of  lot   3 
20.0243+0.0129=20.04,   being  the   east  boundary   of  lot  2 
20.05+20.04=40.09  area  lot  i ;  20.04+20.02=40.06  area  lot  2 
20.02+20.01=40.03  area  lot  3 
20.00+20.01       17.75+17.78 
x =35-54  area  of  lot  4 

2  2 

Also  (17.78+17.87)  x  3=       106.95,  area  of  lots  5,  6  and  7 
Add  area  regular  subdivisions  360.00  acres 

Total 622.67  acres,  area  of  section  6 

Chs.       Chs. 
Test.  (77-87+7775)  x  4=     622.48 

77.75  x  0.025=  0.19,  area  triangle  C.  A.  B. 


Total 622.67,  area  Sec.  6.  Fig.  29. 

18Ante  §   156. 
19Manual   (1902)   244. 


19 


§15^  SURVEYING   AND   BOUNDARIES  134 

§  158.  Areas  of  tracts  forty  chains  long  north  or  west 
boundary. — It  will  be  seen  that  the  area  of  a  tract  40  chains 
long,  adjoining  the  north  or  west  boundaries  of  a  township, 
(except  in  northwest  quarter  of  section  6)  will  be  equal  to  the 
sum  of  the  parallel  boundaries  expressed  in  chains  and  deci- 
mals, multiplied  by  2.  As  an  example  refer  to  Fig.  29.  The 
areas  of  lots  6  and  7  would  be  (17.87  plus  17.81)  x  3  or  71.36 
acres. 

It  will  be  evident  that  the  area  of  a  tract  60  chains  long, 
situated  as  described  herein,  (excluding  lot  4  of  section  6), 
may  be  found  by  multiplying  the  sum  of  its  parallel  boun- 
daries, expressed  in  chains  and  decimals  of  a  chain  by  3; 
'Example.  See  Fig.  29.  The  south  boundary  of  lot  4  equals 
17.78  chains;  south  boundary  lot  7  equals  17.87  chains,  area 
of  lots  5,  6  and  7,  is  (17.78  plus  17.87)  x  2  equals  106.95 
acres.  See  example  2  above. 

The  reader  will  note  that  the  areas  of  quarter-sections  ad- 
joining north  and  west  boundaries  of  a  township  (excluding 
northwest  quarter  of  Sec.  6),  may  be  found  by  multiplying 
the  sum  of  their  parallel  boundaries,  taken  in  chains  and  deci- 
mals of  a  chain,  by  2;  example;  the  area  of  S.  W.  1/4  of  Sec. 
6,  (Fig.  29),  is  (37.87  plus  37.81)  x  2,  which  equals  151.36 
acres. 

In  fact  the  areas  of  any  section  along  the  north  and  west 
boundaries  of  a  regular  township  (except  section  6),  may  be 
found  by  multiplying  the  sum  of  the  parallel  boundaries,  ex- 
pressed in  chains  and  decimals  of  a  chain,  by  4;  example;  The 
area  of  section  31,  (Fig.  28),  is  (78.35  plus  78.50)  x  4,  which 
equals  627.40  acres.  It  should  be  borne  in  mind  that  sub- 
divisions closing  irregularly  to  the  south  or  east  exterior 
boundary  are  to  be  computed  by  similar  methods.20 

§  159.  In  conclusion. — We  have  been  thus  explicit  in  the 
consideration  of  the  question  of  the  formation,  numbering 

20Manual  (1902)  245. 


135  FRACTIONAL  LOTS,    NUMBERING  AND  AREAS         §    159 

and  computation  of  the  areas  of  fractional  lots  in  order  that, 
not  only  the  surveyor  but  the  bar,  may  fully  understand  the 
principles  applied  in  making  the  original  surveys  in  such  cases. 
It  is  thought  that  the  suggestions  herein  will  be  ample  to  en- 
able members  of  the  two  professions  to  gain  a  correct  idea  of 
the  principles  involved.  This  information  is  necessary  to 
enable  the  local  surveyor  to  correctly  subdivide  a  fractional 
section  into  lots,  and  also  to  enable  the  bar  to  decide  whether 
or  not  the  stated  survey  is  correctly  made.  A  careful  study  of 
the  several  diagrams  to  which  reference  is  made,  is  essential 
to  a  correct  understanding  of  the  text. 


CHAPTER  IX 

STREAMS,  LAKES  AND  PONDS 

Sec.  Sec. 

160.  Generally.  165.  State  owns  the  beds  of  lakes. 

161.  Ponds.  166.  L  o  w-w  ater   mark   is   the 

162.  Lakes.  boundary  in  some  states. 

163.  Navigable  rivers  public  high-    167.  May  hold  to  water's  edge. 

ways.  168.    May  take  to  thread  of  stream. 

164.  In    some    jurisdictions    state    169.    The  owner  of  the  shore  owns 

owns     beds     of     navigable  unsurveyed  islands, 

rivers     below     high- water    170.    Where  lake  is  a  boundary, 
mark. 

§  1 60.  Generally. — The  rights  of  proprietors  of  lands 
bounded  on  streams,  lakes,  and  ponds  are  various  and  valuable. 
Among  such  rights  we  note  the  right  to  fish,  to  harvest  ice,  to 
build  docks,  to  anchor  booms,  to  build  mills,  to  land  boats, 
and  various  other  rights.  The  extent  of  such  rights  depends 
on  circumstances,  but  the  courts  of  the  various  jurisdictions 
do  not  agree  on  the  rights  in  the  water  or  of  the  bed  of  such 
waters  to  be  accorded  to  the  owner  of  the  shore  thereof,  either 
in  navigable  or  nonnavigable  lakes  or  streams.  Hence,  the 
rulings  of  the  court  of  last  resort  in  any  jurisdiction  must  be 
consulted  for  the  law  of  that  jurisdiction.  It  is  the  rule  and 
so  conceded  that  when  a  state  is  admitted  into  the  Union, 
unless  restricted  by  the  act  so  admitting  it,  that  all  of  the  lakes 
and  streams  therein  become  the  property  of  the  state  and  sub- 
ject to  its  jurisdiction.  This,  of  course,  must  be  taken  to  mean 
subject  to  the  right  of  the  federal  government  to  navigate  such 

136 


137  STREAMS,  LAKES  AND  PONDS  §    l6o 

waters.  Likewise  the  beds  of  such  streams  and  lakes  in  some 
states,  become  the  property  of  the  state ;  in  others,  the  beds  of 
streams  become  the  property  of  the  riparian  owner,  subject  to 
the  right  of  the  public  to  navigate  those  streams. 

Broadly  speaking,  there  are  two  lines  of  decisions  applicable 
in  the  different  states  to  such  riparian  rights.  Some  jurisdic- 
tions hold  that  the  riparian  proprietor  owns  the  bed  and  the 
right  to  the  water  resting  thereon  to  the  "thread  of  the  stream" 
or  center  line  of  both  navigable  and  nonnavigable  streams, 
subject,  of  course,  to  the  rights  of  the  public  to  navigate  and 
use  said  streams.1  And  nonnavigable  lakes  are  governed  by  a 
similar  rule  in  those  states.  On  the  other  hand,  the  supreme 
court  of  the  state  of  Iowa,  holds  that  the  title  of  the  riparian 
proprietor  in  navigable  streams  extends  only  to  the  line  of 
high-water  mark  and  that  the  state  owns  the  bed  thereof.2 
And  the  same  rule  has  been  followed  in  Arkansas.3  The  Ar- 
kansas court  says :  "A  riparian  owner  upon  a  navigable 
stream,  deriving  title  from  the  United  States,  takes  only  to 
high-water  mark,  and  not  to  the  middle  of  the  stream,  the  title 
to  the  bed  of  the  stream  being  in  the  state."  The  reader  will 
note  also,  that  some  of  the  courts  distinguish  between  navigable 
and  nonnavigable  waters.  The  rights  of  riparian  proprietors 
to  alluvial,  dry  shores,  the  beds  of  dried  up  lakes,  and  the 
right  to  follow  the  water  in  a  stream  or  lake  as  it  recedes  will 
be  treated  at  length  in  a  subsequent  chapter.4 

It  has  been  held  by  the  Missouri  court  that  a  riparian  pro- 
prietor of  lands  in  that  state  owns  to  low-water  mark  on  navi- 
gable rivers.5  It  will  be  noted  that  this  is  a  slight  variation  of 

JLovingston  v.  St.  Clair,  64  111.  3St.  Louis  &  C.  R.  Co.  v.  Ram- 
56,  16  Am.  Rep.  516;  Lorman  v.  sey,  53  Ark.  314,  13  S.  W.  931,  8 
Benson,  8  Mich.  18.  L.  R.  A.  559,  22  Am.  St.  195. 

2Barney    v.    Keokuk,    94    U.    S.       *Post  ch.  XIV. 
324,  24  L.  ed.  224.  5Frank  v.   Goddin,   193   Mo.  390, 

91  S.  W.  1057,  112  Am.  St.  493. 


§    l6l  SURVEYING  AND  BOUNDARIES  138 

the  rule  of  the  Iowa  court  referred  to  above.  The  Pennsyl- 
vania court  holds  that  a  grant  of  land  on  a  nonnavigable  stream 
calls  for  title  to  the  "thread  of  the  stream,"  and,  if  navigable, 
to  low-water  mark.6  So  also  the  Nebraska  court  holds  that 
a  grant  of  land  on  a  nonnavigable  stream  extends  to  the 
"thread  of  the  stream."7  But  the  Wisconsin  court  holds  that 
a  definite  boundary,  like  a  nonnavigable  river,  called  for  in  a 
deed,  conveys  the  land  to  the  "thread  of  the  stream."8  So 
too,  the  Wisconsin  court  holds  that  the  owner  of  property  on 
the  bank  of  a  meandered  lake  holds  only  to  the  water  line.9 
In  the  latter  case  the  court  says :  "It  is  well  settled  in  this  state 
that  grants  by  the  United  States,  of  lands  bounded  by  a  mean- 
dered lake  or  other  permanent  body  of  water,  convey  title  to 
the  natural  shore  of  the  body  of  water,  while  the  title  to  the 
land  which  is  under  the  water  is  in  the  state."  And  this  is 
the  rule  in  that  state  irrespective  of  the  size  of  the  body  of 
water.10  So  too,  it  is  the  rule  that  each  state  determines  for 
itself  to  what  extent  it  will  retain  and  exercise  its  prerogative 
over  lands  under  streams  and  bodies  of  water.11 

§  161.  Ponds. — A  pond  is  a  body  of  water  naturally  or 
artificially  confined,  and,  usually,  of  smaller  area  than  a  lake.12 
Webster  defines  a  pond  as,  "A  natural  or  artificial  body  of 
fresh  water."  Ordinarily  we  think  of  a  pond  as  a  small  body 
of  water  and  not  meandered,  although  this  is  not  necessarily 
the  case.  It  is  said  that  the  difference  between  a  stream  and  a 

«Edwards  v.  Woodruff,  25  Pa.  10Ne-Pee  Nauk  Club  v.  Wilson, 

Sup.  Ct.  575-  96  Wis.  290,  71  N.  W.  661. 

7McBride  v.  Whitaker,  65  Nebr.  "Hardin  v.  Jordan,  140  U.  S.  371, 

137,  90  N.  W.  966.  35  L.  ed.  428,  11  Sup.  Ct.  808;  Mc- 

8Lampman  v.  Van  Alstyne,  94  Lennan  v.  Prentice,  85  Wis.  427,  55 

Wis.  417,  69  N.  W.  171.  N.  W.  764. 

»Ne-Pee  Nauk  Club  v.  Wilson,  12Peters  v.  State,  96  Tenn.  682, 

96  Wis.  290,  71  N.  W.  661.  36  S.  W.  399,  33  L.  R.  A.  114.  See 

31  Cyc.  911. 


139  STREAMS,  LAKES  AND  PONDS  §    1 62 

pond  of  lake  is  that  in  the  latter  case,  the  water  is,  in  its 
natural  state,  substantially  at  rest.13  The  rights  of  shore  own- 
ers in  the  waters  and  beds  of  a  pond  depends  on  surrounding 
circumstances.  The  courts  of  New  York  have  held  that  a 
tract  of  land  bounded  by  a  natural  pond  extends  to  the  center 
of  the  pond.14  This  would  seem  to  be  the  rule  of  reason. 
And  evidently  if  a  party  owned  land  on  every  side  of  a  pond 
he  would  own  the  entire  pond  and  the  bed  thereof.  In  case 
of  artificial  ponds,  the  thread  of  the  stream  flowing  through 
the  pond  is  the  boundary.15  But  in  Massachusetts  the  line  of 
the  shore  of  a  natural  pond  is  the  boundary.16  This  rule  has 
been  followed  by  some  other  states  but  the  weight  of  authority 
and  the  better  rule,  as  to  natural  ponds,  is  that  the  riparian 
owner  takes  to  the  center  of  the  pond.  By  the  common  law 
and  by  the  latest  decisions  of  the  land  department  of  the  United 
States  government,  the  owner  of  land  on  the  bank  of  a  non- 
navigable  lake  or  pond  takes  to  the  center.17 

§  162.  Lakes. — Webster  defines  a  lake  as,  "A  large  collec- 
tion of  water  in  a  cavity  or  hollow."  Naturally  there  is  a 
vast  difference  between  a  large  lake  and  a  small  lake  as  to  the 
rights  of  the  riparian  owners.  Still  shore  owners  of  all  lakes 
have  certain  well  defined  rights  which  can  not  be  taken  away 
without  just  compensation.  As  we  have  seen  the  various 
jurisdictions  do  not  agree  as  to  the  extent  of  the  rights  of 
riparian  owners.  It  would  seem  that  the  better,  rule  in  the 

132  Far.  Waters,  1561 ;  Trustees  17Olson  v.  Huntarmer,  6  S.  Dak. 

of  schools  v.  Schroll,  120  111.  509,  364,  61  N.  W.  479;  Hardin  v.  Jor- 

12  N.  E.  243,  60  Am.  Rep.  575-  dan,  140  U.  S.  371,  35  L-  ed.  428,  11 

14Gouverneur  v.  National  Ice  Co.,  Supt.  Ct.  808 ;  Lamprey  v.  Metcalf , 

134  N.  Y  355,  31  N.  E.  865,  18  L.  52  Minn.  181,  53  N.  W.  1139,  18  L. 

R.  A.  695,  30  Am.  St.  669.  R.  A.  670,  38  Am.  St.,  541 ;  Cook 

15Waterman  v.  Johnson,  13  Pick.  v.  McClure,  58  N.  Y.  437,  17  Am. 

(Mass.)  261.  Rep.  270;  Fuller  v.  Dauphin,  124 

16 Waterman  v.  Johnson,  13  Pick.  111.  542,  16  N,  E.  917,  7  Am.  St.  388. 
(Mass.)  261. 


§    163  SURVEYING  AND  BOUNDARIES  140 

case  of  navigable  lakes  is  that  the  riparian  proprietor  owns  eo 
low-water  mark  and  of  nonnavigable  lakes  that  he  owns  to 
the  center  of  the  lake  subject  to  the  rights  of  the  public  to 
pass  over  and  along  the  same.  While  the  state  in  many 
jurisdictions  is  conceded  to  be  the  owner  of  the  lakes  and 
beds  of  lakes  within  its  jurisdiction  still  the  riparian  owner 
may  follow  the  receding  waters  of  such  lake  to  the  center 
thereof.  As  to  a  division  of  the  dry  beds  of  a  lake  between 
the  riparian  owners  the  reader  is  referred  to  a  subsequent 
chapter  of  this  work.18  Should  a  lake  lie  between  two  states 
or  nations  the  boundary  line  between  them  would  be  the  center 
line  of  the  lake,  and  each  would  have  title  to  such  center  line.19 
And  it  is  said,  that  the  sovereignty  of  the  state  of  Wisconsin, 
extends  to  the  center  of  Lake  Michigan,  and  its  laws,  so  far 
as  they  do  not  conflict  with  the  laws  of  the  United  States,  are 
operative  within  such  limits.20  The  rule  relative  to  the  boun- 
dary between  states  and  nations  may  be  changed  by  treaty,  by 
prior  discovery  and  possession,  and  by  cession  of  the  sovereign 
power  and  the  "three-mile"  limit  is  not  usually  applicable  to 
such  lakes.21  The  navigation  of  the  lake  is  open  to  both  nations, 
but  each  may  enforce  its  own  laws  so  far  as  its  territorial  limits 
go.22  In  the  Ohio  case  the  court  held  that  the  northern 
boundary  of  the  state  of  Ohio  was  at  the  line  fixed  between 
the  United  States  and  Canada  and  that  the  jurisdiction  of  the 
state  extended  to  that  point  for  the  preservation  of  peace  and 
the  punishment  of  crime. 

§  163.     Navigable  rivers — Public  highways. — By  the  act  of 
May,  1796,  amended  by  act  of  March,  1803,  the  Congress  of 

"Post  ch.  XIV.  2*Illinois  Central  Ry.  Co.  v.  II- 

19Thorson  v.   Peterson,   10   Biss,  linois,  146  U.  S.  387,  36  L.  ed.  1018, 

530,  9   Fed.   517;   The   Sultana  v.  13  Sup.  Ct  no. 

Chapman,  5  Wis.  454.  22!  Farnham  Waters,  28;  Edson 

20Bigelow  v.  Nickcrson,  70  Fed.  v.  Crangle,  62  Ohio  St.  49,  56  N. 

113,  30  L.  R.  A.  336.  E.  647. 


141  STREAMS,  LAKES  AND  PONDS  §    164 

the  United  States  provided  that;  "All  navigable  rivers,  within 
the  territory  occupied  by  the  public  lands,  shall  remain  and  be 
public  highways ;  and,  in  all  cases  where  the  opposite  banks  of 
any  streams  not  navigable  belong  to  different  persons,  the 
stream  and  the  bed  thereof  shall  become  common  to  both."23 
Evidently  this  act  applies  to  streams  running  through  public 
lands  only.  So,  also  plainly,  the  common-law  rule  as  to  ripa- 
rian ownership  applies  to  nonnavigable  streams  so  situated  but 
not  to  navigable  streams.  The  latter  are  public  highways 
under  the  act.24  But  the  owners  of  lands  on  opposite  banks 
of  nonnavigable  streams,  under  this  section,  are  deemed  to  hold 
in  severalty  to  the  thread  of  the  stream.25  This  section  makes 
the  rivers  public  highways  free  from  the  interference  of  ripa- 
rian owners  and  still  such  owners  have  their  rights  to  the  bed  of 
the  stream  subject  to  the  public  interests.26 

§  164.  In  some  jurisdictions  state  owns  beds  of  navigable 
rivers  below  high-water  mark.— Upon  the  territory  becoming  a 
state,  such  state  became  the  owner  of  the  navigable  streams 
and  beds  thereof  below  high-water  mark  and  it  exercises  its 
sovereign  rights  over  the  same,  subject  to  the  rights  of  the 
people,  for  commercial  purposes.27  The  state  of  Nebraska 
holds  that  the  rights  of  the  riparian  owner  in  navigable  streams 
are  bounded  by  the  banks  of  the  stream.28 

At  common  law  the  beds  of  streams,  not  navigable,  belonged 

23Rev.  Stat.  §  2476;  Comp.  Stat  ^Barney  v.  Keokuk,  94  U.  S.  324, 

§  49i8.  24  L.  ed.  224;  State  v.  Nolegs,  40 

24St.  Paul  R.  Co.  v.  Schurmeir,  Okla.  479,   139  Pac.  943;   State  v. 

7  Wall.  (U.  S.),  272  19  L.  ed.  74;  Mincie  Pulp  Co.,  119  Tenn.  47,  104 

Shively  v.  Bowlby,  152  U.  S.  i,  38  S.  W.  437. 

L.  ed.  331,  14  Sup.  Ct.  548.  28Kinkead  v.  Turgeon,  74  Nebr. 

25Indiana   v.   Milk   Co.,   n   Fed.  573,  104  N.  W.  1061 ;   109  N.  W. 

389.  744,  i  L.  R.  A.  (N.  S.)  762. 

26Johnson  v.  Johnson,  14  Idaho 
561,  95  Pac.  499,  24  L.  R.  A.  (N. 
S.)  1240. 


§    164  SURVEYING  AND  BOUNDARIES  142 

to  the  riparian  owner  but  the  beds  of  navigable  streams,  being 
those  in  which  the  tide  ebbs  and  flows,  belonged  to  the  state.29 
It  must  be  remembered,  therefore,  at  common  law  compara- 
tively few  streams  were  navigable. 

The  reason  for  the  divergence  of  views  of  courts  of  the 
various  jurisdictions  of  the  United  States  as  to  the  ownership 
of  the  beds  of  streams  is  due  to  the  fact  that  at  common  law 
those  streams,  only,  were  navigable  in  which  the  tide  ebbs  and 
flows  as  set  forth  above.  All  others  were  deemed  nonnavi- 
gable.  In  this  country,  however,  it  is  generally  held  that 
streams  are  navigable  which  are  capable  of  being  navigated  for 
commercial  purposes.30  It  is  said  in  the  latter  case  that,  "In 
the  states  of  the  American  Union  in  which  the  English  com- 
mon law  prevails  there  is  a  conflict  of  opinion  in  the  courts 
of  last  resort  as  to  whether  the  title  to  beds  of  fresh-water 
rivers,  which  are  navigable,  in  fact,  remains  in  the  state  or  in 
the  riparian  owners  of  the  stream.  This  conflict  arose  when 
some  of  the  colonial  courts,  and  later  the  supreme  court  of 
the  United  States,  made  a  departure  from  the  common-law 
test  of  navigability  (that  it  should  be  a  stream  in  which  the 
tide  ebbs  and  flows,  or  an  "arm  of  the  sea,")  and  made  the 
test  a  practical  question  of  fact  as  to  whether  or  not  the  stream 
was  actually  navigable.  When  this  departure  was  made,  the 
conflict  arose  in  the  different  states  as  to  what  rule  should  be 
applied  to  the  ownership  of  the  beds  of  streams  which  were 
navigable  in  fact,  but  not  at  common  law.  As  has  been  stated, 
at  common  law  the  bed  of  a  river  in  which  the  tide  ebbed  and 
flowed  was  held  by  the  King,  while  the  title  to  the  bed  of  all 
fresh-water  rivers  was  in  the  riparian  owners.  Some  of  the 
American  courts  notably  Illinois,  Connecticut,  Delaware, 
Georgia,  Kentucky,  Maryland  and  Maine,  applied  the  doc- 

29Kinkead  v.  Turgeon,  74  Nebr.  30Kinkead  v.  Turgeon,  74  Nebr. 
573,  104  N.  W.  1061 ;  109  N.  W.  573,  104  N.  W.  1061 ;  109  N.  W. 
744,  i  L.  R.  A.  (N.  S.)  762.  744,  I  L.  R.  A.  (N.  S.)  762. 


143  STREAMS,  LAKES  AND  PONDS  §    165 

trine  that,  as  these  fresh-water  streams  were  nonnavigable  at 
common  law,  the  common-law  rule  as  to  the  title  to  fresh- 
water streams  apply,  and  consequently  that  each  riparian 
owner  took  to  the  middle  thread  of  the  stream/'31 

That  court  goes  on  to  say :  "The  opposite  view  found  favor 
in  the  decisions  of  the  supreme  courts  of  Pennsylvania,  Iowa, 
Missouri,  Kansas,  Minnesota,  California,  Nevada,  Arkansas, 
Alabama,  Tennessee,  Indiana  and  others/'32  These  decisions 
proceed  on  the  theory  that,  as  these  streams  are  navigable  in 
fact,  the  rule  applicable  to  the  bed  of  tide-water  streams  should 
apply,  and  the  title  be  placed  in  the  state.  The  other  decisions 
proceed  on  the  theory  that  as  these  streams  were  not  navigable 
at  common  law  the  rule  as  to  the  title  to  the  beds  of  such 
streams  should  remain  where  the  common  law  placed  it,  in  the 
riparian  owner.  In  our  opinion,  there  are  good  grounds  for 
both  positions.  However,  it  will  be  noted  that  practically  all 
of  the  states  hold  that  the  riparian  owner  will  hold  the  alluvial 
formations  and  his  boundary  will  follow  the  stream  as  it 
recedes. 

§  165.  State  owns  the  beds  of  lakes. — The  title  and  the 
dominion  of  the  beds  of  the  Great  Lakes  belong  to  the  state 
adjacent  to  which  the  same  is  located.33  The  same  rule  is 
applied  to  beds  of  Great  Lakes  as  applied  at  common  law  to 
the  bed  of  tide  waters.34  Riparian  owners  along  the  Great 

31Adams  v.  Pease,  2  Conn.  481 ;  71  Cal.  134,  1 1  Pac.  873 ;  Shoemaker 

Braxon  v.  Bressler,  64  111.  488;  De-  v.  Hatch,  13  Nev.  261;  Bullock  v. 

laney  v.  Boston,  2  Har.  (Del.)  489;  Wilson,  2  Port.   (Ala.)  436;  Bain- 

Hendrick  v.  Cook,  4  Ga.  241.  bridge  v.  Sherlock,  29  Ind.  364,  95 

32McManus     v.     Carmichael,     3  Am.  Dec.  644. 

Iowa,  i;  Carson  v.  Blazer,  2  Bin.          33People  v.  Kirk,  162  111.  138,  45 

(Pa.)    475;    Wood   v.    Fowler,   26  N.  E.  830,  53  Am.  St.  277;   State 

Kans.  682,  40  Am.  Rep.  330;  Lam-  v.   Venice   of   America   Land   Co., 

me  v.   Buse,   70  Mo.   463;    Schur-  160  Mich.  680,  125  N.  W.  770. 
meier  v.  St.  Paul  Ry.  Co.,  10  Minn.          34Chicago  Transit  Co.  v.  Camp- 

82,  88  Am.  Dec.  59,  7  Wall.  (U.  S.)  bell,  no  111.  App.  366. 
272,  19  L.  ed.  74;  Packer  v.  Bird, 


§    l66  SURVEYING  AND  BOUNDARIES  144 

Lakes  own  only  to  the  meander  line.85  And  it  is  held,  in  Wis- 
consin, that  submerged  land  along  a  lake  belongs  to  the  state 
in  trust  for  the  people  of  the  state.36  And  it  is  the  law  that 
the  interior  department  can  not  grant  title  to  private  parties  of 
land  covered  by  a  navigable  lake  and  such  patent  to  that  extent 
would  be  void.  The  patentee  would  take  only  to  the  water's 
edge.37  In  the  latter  case  the  court  says :  "In  this  state  it  has 
been  repeatedly  held  that  the  riparian  proprietor  upon  navi- 
gable lakes  and  ponds  takes  title  of  the  land  only  to  the 
water's  edge."38  And  it  is  the  law  that  the  state  and  the 
national  government  are  powerless  to  convey  the  beds  of  lakes, 
and  such  a  conveyance  is  inoperative  as  to  all  such  lands.39 
So,  too,  the  title  to  the  bed  of  Lake  Michigan,  below  high- 
water  mark,  is  in  the  state.40  And  whether  the  title  of  the 
proprietor  of  lands  bordering  on  a  navigable  river  extends  to 
high-water  mark,  low-water  mark,  or  the  middle  of  the  stream 
must  be  determined  by  the  laws  of  the  state  where  the  land 
lies.41 

§  1 66.  Low-water  mark  is  the  boundary  in  some  states. — 
It  will  be  seen,  by  an  examination  of  the  authorities,  that  the 
courts  are  at  variance  as  to  whether  the  owner  of  the  shore  of 
a  navigable  lake  or  stream  takes  to  high-water  mark  or  low- 
water  mark,  or  in  fact,  to  the  thread  of  a  stream,  if  a  stream. 

85Ainsworth    v.    Munoskong  Improvement  Co.,  93  Wis.  534,  67 

Hunting   &c.   Club,    159   Mich.   61,  N.  W.  918,  33  L.  R.  A.  645. 

123  N.  W.  802.  89Illinois   Steel  Co.  v.  Bilot,  109 

8«Pewaukee   v.   Savoy,   103   Wis.  Wis.  418,  84  N.  W.  855,  85  N.  W. 

271,  79  N.  W.  436,  50  L.  R.  A.  836.  402,  83  Am.  St.  905. 

74  Am.  St.  859.  *°Beck    Co.    v.    Milwaukee,    130 

87Mendota     Club    v.     Anderson,  Wis.  340,  120  N.  W.  293,  131  Am. 

101  Wis.  479,  78  N.  W.  185.  St.   1061. 

38Delaplaine  v.  Chicago  &  C.  Ry.  41Kaukauna  Water  Power  Co.  v. 

Co.,  42  Wis.  214,  24  Am.  Rep.  386 ;  Green  Bay  &c.   Canal  Co.,   142  U. 

Priewe    v.    Wisconsin     State    &c.  S.  254,  35  L.  ed.  1004,  12  Sup.  Ct 

173- 


145  STREAMS,  LAKES  AND  PONDS  §     1 68 

Many  courts  hold  that  the  owner  of  land  bordering  on  a 
navigable  stream  takes  to  low-water  mark.42  The  reason  for 
this  difference  undoubtedly  is  traceable  to  the  old  common-law 
idea  of  navigability  as  suggested  in  the  preceding  chapter. 

§  167.  May  hold  to  water's  edge. — Other  states  hold  that 
the  riparian  owner  on  a  navigable  stream  owns  to  the  water's 
edge.43  So  also,  a  patent  from  the  government  which  makes 
the  margin  of  a  stream,  navigable,  in  fact,  the  boundary,  con- 
veys title  to  the  water's  edge.44  And  a  grant  of  land  by  the 
United  States  adjoining  an  unnavigable  lake,  under  a  state 
law  where  riparian  owners  take  to  the  water's  edge,  would  not 
transfer  land  lying  under  the  water  of  the  lake.45  And  where 
land  bounded  by  a  navigable  river,  has  been  surveyed,  the 
river  meandered,  the  owner  holding  under  a  patent  from  the 
United  States  will  take  only  to  the  bank.46  And  the  grantee  in 
a  deed  or  patent  along  the  Mississippi  river  in  the  state  of 
Missouri  takes  to  the  water's  edge  only.47  The  reader  will 
do  well  to  carefully  study  the  cases  cited  herein. 

§  1 68.     May  take  to  thread  of  stream. — We  come  now  to  a 

consideration  of  a  third  class  of  cases  from  another  group  of 
states.  As  heretofore  suggested,  it  is  held  in  many  states  that 
title  of  a  riparian  owner  to  land  bordering  on  a  stream  not 
navigable  at  common  law  but  navigable  in  fact,  extends  to  the 

42Webb    v.    Demopolis,    95    Ala.  44Packer  v.  Bird,  137  U.  S.  661, 

116,   13   So.  289,  21   L.   R.  A.  62;  34  L.  ed.  819,  n  Sup.  Ct.  210. 

Schurmeir   v.    St.   Paul   &   C.   Ry.  45Marshal    Dental    Mfg.    Co.    v. 

Co.,  10  Minn.  82,  88  Am.  Dec.  59,  State,  226  U.  S.  460,  57  L.  ed.  300, 

affd.  74  U.  S.  272,  19  L,  ed.  74,  33  Sup.  Ct.  168;  State  v.  Jones,  143 

Stinson  v.  Butler,  4  Blackf.  (Ind.)  Iowa,  398,  122  N.  W.  241. 

285.  46Wood  v.  Fowler,  26  Kans.  682, 

43 Cox  v.  Arnold,  129  Mo.  337,  31  40  Am.  Rep.  330. 

S.  W.  592,  50  Am.  St.  450;  Frank  47Cooley  v.  Golden,  117  Mo.  33, 

v.  Goddin,  193  Mo.  390,  91   S.  W.  23  S.  W.  100,  21  L.  R.  A.  300. 
1057,  112  Am.  St.  493. 


§    1 68  SURVEYING  AND  BOUNDARIES  146 

middle  or  thread  of  the  stream.48  Of  course,  this  must  be 
taken  to  mean  subject  to  the  right  of  the  public  to  pass  over 
and  along  the  stream.  A  riparian  owner  of  lands  on  a  stream, 
navigable  in  fact,  or  nonnavigable  takes  to  the  center  of  the 
thread  of  the  stream,  as  we  will  see  in  some  states.49  And 
land  conveyed  by  the  federal  government  without  reservation 
on  a  navigable  stream  carries  title  to  the  middle  line  of  the 
stream,  we  are  told.50  We,  too,  find  the  supreme  court  of 
Nebraska  holding:  "That  the  rights  of  riparian  owners  upon 
the  Missouri  river  to  land  formed  by  accretion  are  the  same 
as  if  the  river  were  not  navigable."51  And  the  Michigan  court 
has  held  that  a  riparian  owner  on  a  stream  navigable  only 
in  a  modified  sense  for  floating  logs  and  lumber  presumably 
owns  to  the  center  of  the  stream.52  The  Wisconsin  court  holds 
that  a  riparian  proprietor  on  a  navigable  river — the  Mississippi 
— in  that  state  has  absolute  title  to  the  land  to  the  line  of 
ordinary  high-water  mark;  but  as  incident  thereto,  subject  to 
the  public  rights,  he  owns  to  the  center  of  the  stream  by  the 
grace  of  the  state,  and  the  size  of  the  river  makes  no  differ- 
ence in  the  right.53  And  where  that  river  is  a  boundary  be- 
tween that  state  and  another  state,  the  riparian  owner  in  that 

48M  i  d  d  1  e  t  o  n  v.   Pritchard,   3  107   Pac.   47 ;    Stoner  v.   Rice,   121 

(Scam.)  111.  510,  38  Am.  Dec.  112;  Ind.  51,  22  N.  E.  968,  6  L.  R.  A. 

Braxon    v.    Bressler,   64    111.    488;  387. 

People    v.    Economy    Light    &    P.  50Butler  v.  Grand  Rapids  &  I.  R. 

Co.,   241    111.   290,   89   N.   E.   760;  Co.,  85  Mich.  246,  48  N.  W.  569, 

Webber  v.   Pere   Marquette  Boom  24  Am.  St.  84 ;  Franzini  v.  Layland, 

Co.,  62  Mich.  626,  30  N.  W.  469;  120  Wis.  72,  97  N.  W.  499. 

Walker  v.  Board  of  Public  Works,  51Gill  v.  Lydick,  40  Nebr.  508,  59 

16  Ohio  540;  Mariner  v.  Shulte,  13  N.   W.   104;    Kinkead   v.   Turgeon, 

Wis.  692 ;  Green  Bay  &  M.  Canal  74  Nebr.  573,  104  N.  W.  1061 ;  109 

Co.  v.  Telulah  Paper  Co.,  140  Wis.  N.  W.  744,  i  L.  R.  A.  (N.  S.)  762. 

417,  122  N.  W.  1062;  St.  Louis  v.  "Attorney     General     v.      Evart 

Rutz,  138  U.  S.  226,  34  L.  ed.  941,  Booming  Co.,  34  Mich.  462. 

ii  Sup.  Ct.  337.  B3Franzini  v.  Layland,   120  Wis. 

49Lattig  v.   Scott,   17  Idaho  506,  72,  97  N.  W.  499- 


147  STREAMS,  LAKES  AND  PONDS  §    169 

state  owns  to  the  boundary  of  the  state  of  Wisconsin,  that  is 
to  the  center  line  of  the  main  channel  of  that  river.5*  Still  it 
is  held  that  a  riparian  owner  on  a  navigable  stream  has  only 
a  qualified  title  to  the  bed  of  such  stream.55 

§  169.  The  owner  of  the  shore  owns  unsurveyed  islands.— 
In  those  states  where  the  patentee's  title,  by  virtue  of  the  rul- 
ings of  the  courts,  extends  to  the  thread  of  the  stream  it  in- 
cludes an  unsurveyed  island  within  such  limits,  and  the  federal 
government  can  not  divest  such  title  to  the  island  by  a  subse- 
quent survey  and  patent  to  another,  in  the  absence  of  a  show- 
ing that  it  was  left  unsurveyed  by  fraud  or  mistake.56 

In  the  case  of  Chandos  v.  Mack  cited  herein,  the  facts 
briefly  were  that  the  plaintiff  was  the  owner  of  lots  3  and  4 
in  a  certain  section,  on  the  west  bank  of  the  Wisconsin  river ; 
that  between  the  west  bank  and  the  thread  of  the  river,  the 
main  channel  thereof,  there  was  an  island  some  1,250  feet 
long  and  70  to  300  feet  wide,  lying  lengthwise  of  the  river. 
This  island  had  never  been  surveyed  by  the  government. 
Other  islands  in  the  immediate  vicinity  had  been  surveyed. 
This  island  was  shown  on  the  government  plat  on  file.  The 
plaintiff  claimed  the  island  by  reason  of  his  riparian  rights  to 
the  thread  of  the  stream.  Upon  a  careful  consideration  of  the 
case  the  court  held  that  the  island  belonged  to  the  plaintiff. 
The  court  says  in  that  case :  "The  inference  certainly  is  very 
strong,  when  the  government  leaves  a  small  island  in  a  navi- 
gable river,  lying  between  the  shore  and  the  middle  of  the 
stream,  unsurveyed,  and  sells  all  the  surveyed  islands,  and  all 
the  lands  on  both  sides  of  the  river,  that  it  intends  to  abandon 

54Franzini  v.  Layland,   120  Wis.  15  Sup.   Ct.  991;   Butler  v.  Grand 

72,  97  N.  W.  499.  Rapids  &  I.  R.  Co.,  85  Mich.  246, 

esDiana  Shooting  Club  v.  Hust-  4§  N.  W.  569;  24  Am.  St.  84.  Chan- 
ing,  156  Wis.  261,  145  N.  W.  816,  dos  v.  Mack,  77  Wis.  573,  46  N.  W. 
Ann.  Cas.  I9I5C,  1148.  803,  10  L.  R.  A.  207,  20  Am.  St 

B6Grand  Rapids  &  I.  Ry.  Co.  v.  I39« 
Butler,  159  U.  S.  87,  40  L.  ed.  85, 


§    170  SURVEYING  AND  BOUNDARIES  148 

all  right  to  such  unsurveyed  island,  and  let  it  pass  to  the 
riparian  owners  of  lands  on  the  river  as  an  incident  to  its 
grant."57  Other  cases  are  to  the  same  effect.58  And  the 
Michigan  court  holds  similarly.59 

§  170.  Where  lake  is  a  boundary. — It  is  said  that  riparian 
rights  on  the  Great  Lakes  are  the  same,  in  theory,  as  upon 
navigable  streams  and  there  is  no  such  thing  as  high-  and  low- 
water  mark  in  the  state  of  Michigan.  And  it  is  said  that  the 
submerged  lands  are  appurtenant  to  the  upland  so  far  as  their 
limits  can  be  identified;  but  the  state  law  governs  as  to  such 
rights.  The  state  can  forbid  any  erections  in  navigable  waters 
and  navigable  streams  and  on  the  Great  Lakes.60  And  it  is 
held  in  that  state  that  the  title  of  the  riparian  owner  extends 
to  the  middle  line  of  the  lake  or  stream  of  the  inland  waters.61 
And  the  soil  under  the  waters  of  inland  lakes  of  that  state  be- 
longs to  the  riparian  owners  and  does  not  belong  to  the  state.62 
It  is  also  held  that  private  ownership  of  lands  bounded  on 
navigable  fresh  water  is  not  restricted  to  the  meander  line.83 
But  in  the  state  of  Minnesota  where  a  lake  is  navigable  in  fact 
the  riparian  owners  take  fee  to  the  water's  edge  only.64  How- 
ever, if  the  lake  was  nonnavigable  in  fact  the  riparian  owner 
would  take  to  the  center  of  the  lake.65  But  even  in  that  state 
the  riparian  owner  is  entitled  to  all  accretions  and  would  hold 
to  the  water's  edge.66 

"Farris  v.  Bentley,  141  Wis.  671,  62Clute  v.  Fisher,  65  Mich.  48,  31 

124  N.  W.  1003.  N.  W.  614. 

68Hobart  v.  Hall,  174  Fed.  433.  6sLorman  v.  Benson,  8  Mich.  18. 

59Church  v.  Case,  122  Mich.  554,  64Lamprey  v.  State,  52  Minn.  181, 

81  N.  W.  334-  53  N.  W.  1139,  18  L.  R.  A.  670,  38 

60Lincoln  v.  Davis,  53  Mich.  375.  Am.  St.  541. 

19  N.  W.  103,  51  Am.  Rep.  116.  65Lamprey  v.  State,  52  Minn.  181, 

61Webber     v.     Pere     Marquette  53  N.  W.  1139,  18  L.  R.  A.  670,  30 

Boom  Co.,  62  Mich.  626,  30  N.  W.  Am.  St.  541. 

469.  66Hanson  v.  Rice,  88  Minn.  273, 

92  N.  W.  082. 


149 


STREAMS,,  LAKES  AND  PONDS 


§170 


In  the  case  of  Hanson  v.  Rice,  supra,  the  question  for  de- 
cision was  as  to  the  boundary  between  Lots  2,  4,  6  and  7  of 
Section  4  of  a  certain  township.  Plaintiff  owned  Lot  7  and 
the  defendant  was  the  owner  of  Lots  2  and  4  of  the  same  sec- 


Rq.31 


tion.  Fig.  31.  The  government  meander  line  is  shown  some 
distance  from  the  actual  shore  line  of  the  lake  and  was  so  run 
at  the  time  of  the  original  survey.  The  lower  court  held  that 
the  line  E-F  was  the  boundary  between  plaintiff  and  defendant 
but  the  higher  court  reversed  this  and  held  that  the  riparian 


§    I/O  SURVEYING  AND  BOUNDARIES  150 

owners  took  to  the  center  of  the  lake  and  could  not  be  cut  off 
from  the  water.  While  the  appellate  court  does  not  undertake 
to  decide  in  advance  the  exact  lines  of  division  to  be  run,  yet 
it  does  hold  that  the  lines  of  boundary  should  converge  toward 
the  center  of  the  lake  something  along  the  order  shown  in  the 
diagram.  If  so  divided  "A"  would  represent  the  line  between 
lots  2  and  4;  "B"  the  line  between  lots  4  and  6,  and  "C"  the 
line  between  lots  6  and  7,  and  "D"  the  line  between  lots  7 
and  8.  This  would,  to  our  mind,  make  an  equitable  division 
of  the  accretion  or,  which  is  the  same  thing,  the  land  between 
the  meander  line  and  the  actual  shore  of  the  lake.  Such  divi- 
sion would  be  founded  on  the  great  weight  of  authority  and 
would  be  equitable  to  all  of  the  riparian  owners.  This  seems 
to  be  the  main  consideration  in  a  division  of  accretion,  alluvial, 
"made  land,"  dock  privileges,  the  dry  beds  of  lakes,  etc.  For 
an  extensive  discussion  of  this  branch  of  the  work  the  reader 
is  referred  to  a  subsequent  chapter  of  the  book.67 
67Post  ch.  XIV. 


CHAPTER  X 


EXCESS  AND  DEFICIENCY 


Sec.  Sec. 

171.  Generally.  181. 

172.  Excess    or   deficiency   appor- 

tioned     to      several      sub-       182. 
divisions. 

173.  Excess  or  deficiency  in  north       183. 

half  of  section  in  northern 

tier  of  sections  in  a  town-       184. 

ship. 

174.  Deficiency    in    two    northern       185. 

tiers  of  sections. 

175.  To    establish    sixteenth    cor-       186. 

ner   in   north   tier   of   sec-       187. 
tions   in  township. 

176.  Excess  and  deficiency  appor-       188. 

tioned. 

177.  A     criticism      of      Missouri       J89- 

court's   position   on   appor-       IQo. 
tioning  excess  or  deficiency 
north  and  west  sections  of       I9L 
township. 

178.  Transfer   of    whole    tract   at 

same  time — Excess  divided.       J92. 

179.  Hold  in  proportion  to  widths       J93- 

granted. 

180.  Apportioned     among     all     of       IO4- 

the  lots. 


Excess  or  deficiency  pre- 
sumed to  cover  whole  line. 

Where  deeds  show  intent  to 
convey  whole  tract. 

Where  tract  supposed  to  con- 
tain a  certain  area. 

Deficiency  of  irregular  lots 
not  paralleling  each  other. 

In  certain  cases  the  excess  is 
not  to  be  apportioned. 

Error  in  platting  village. 

In  some  cases  deficiency 
falls  on  fractional  lots. 

Deeds  executed  by  same 
grantor  at  same  time. 

Excess  in  irregular  tracts. 

Separate  surveys  and  succes- 
sive conveyances. 

Irregular  lots  may  take  all 
excess  or  stand  all  de- 
ficiency. 

Replatting  of  original  block. 

Dimensions  each  lot,  except 
one  irregular  lot,  declared. 

Permanent  monuments  must 
not  be  moved  in  apportion- 
ing excess  or  deficiency. 


§  171.  Generally. — The  surveyor  is  daily  confronted  with 
some  exceedingly  nice  questions,  which  arise  with  reference 
to  the  excess  or  deficiency  of  certain  lines  or  tracts,  shown  by 
recent  measurements,  as  compared  with  the  original  measure- 


§    I71  SURVEYING  AND  BOUNDARIES  152 

ment.  Very  often  these  questions  are  difficult  of  solution  and 
the  surveyor  is  in  doubt  as  to  the  proper  manner  of  appor- 
tioning such  excess  or  deficiency.  However,  the  courts  have 
spoken  plainly  on  the  various  phases  of  this  most  interesting 
subject,  as  the  following  pages  will  show. 

We  can  refer  only  to  a  few  of  the  decided  cases  in  the  several 
jurisdictions.  We  have  selected  some  of  the  most  difficult 
and  have  tried  to  cover  the  subject  in  a  general  way  so  as  to 
aid  the  professions  in  solving  the  many  perplexing  proposi- 
tions which  may  arise  in  actual  practice. 

Of  course  every  surveyor  and  attorney  is  familiar  with  the 
general  rule  that  any  excess  or  deficiency  of  a  line  found  by  a 
recent  measurement,  must  be  distributed  between  the  several 
subdivisions  of  that  line  in  proportion  to  the  original  measure- 
ment. But  the  professions  can  not  follow  this  rule  blindly,  as 
there  are  many  variations  and  some  apparent  exceptions. 

Some  confusion  has  arisen  with  the  courts  in  connection  with 
the  disposition  of  excess  or  deficiency  in  a  resurvey  of  sec- 
tions bordering  on  the  north  or  west  sides  of  a  township,  and 
especially  on  the  half  of  the  section  on  the  north  and  west  sides 
thereof.  It  must  be  remembered  that  any  excess  or  deficiency 
in  such  cases  must  be  distributed  over  the  entire  distance  be- 
tween known  points  according  to  the  original  government 
measurement.  If  the  original  measurement  was  39  chains  and 
the  recent  measurement  was  41  chains  it  would  not  do  to 
place  the  i/i6th  corner  20  chains  from  the  1/4  corner  (recent 
measurement)  but  it  would  have  to  be  apportioned  "according 
to  original  measurement."  This  i/i6th  corner  should,  there- 
fore, be  placed  20  chains,  original  measurement,  from  the  1/4 
corner  or  21.02  1/2  chains  recent  measurement.  The  profes- 
sions should  remember  this.  The  reader  is  referred  to  a  later 
section  in  this  chapter  for  a  discussion  of  this  branch  of  the 
subject.1 
'Post  5  173. 


153 


EXCESS  AND  DEFICIENCY 


§    172 


§  172.  Excess  or  deficiency  apportioned  to  several  subdi- 
visions.— The  supreme  court  of  Nebraska  lay  down  the  rule 
with  reference  to  excess  and  deficiency  as  follows :  "On  the 
line  of  the  same  survey,  and  between  remote  corners,  the  whole 
length  of  which  is  found  to  be  variant  from  the  length  called 
for,  it  is  not  to  be  presumed  that  the  variance  was  caused  from 
a  defective  survey  of  any  part,  but  it  must  be  presumed,  in  the 
absence  of  circumstances  showing  the  contrary,  that  it  arose 
from  imperfect  measurement  of  the  whole  line,  and  such 
variance  must  be  distributed  between  the  several  subdivisions 
of  the  line  in  proportion  to  their  respective  lengths."2 

This  is  the  general  rule  but  there  are  many  variations,  as 
applied  to  different  conditions.  It  must  also  be  remembered 
that  to  invoke  this  rule  in  establishing  the  boundaries  between 
the  several  subdivisions  of  the  variant  line,  such  boundary 
lines  and  the  monuments  originally  established  must  be  lost 
or  obliterated.  Various  jurisdictions  have  held  substantially 
to  the  Nebraska  rule  enunciated  above.3 


2Brooks  v.  Stanley,  66  Nebr.  826, 
92  N.  W.  1013. 

3Francois  v.  Maloney,  56  111.  399; 
Martz  v.  Williams,  67  111.  306; 
Clayton  v.  Feig,  179  HI.  534,  54  N. 
E.  149 ;  Bailey  v.  Chamblin,  20  Ind. 
33 ;  Bennett  v.  Simon,  152  Ind.  490, 
53  N.  E.  649;  McAlpine  v.  Reich- 
eneker,  27  Kans.  257;  Smith  v. 
Prewit,  2  A.  K.  Marsh  (Ky.)  155; 
Respass  v.  Farmers,  5  J.  J.  Marsh, 
(Ky.)  648;  Choppin  v.  Manson, 
144  Ky.  634,  139  S.  W.  860;  Brown 
v.  Gay,  3  Maine,  126;  Witham  v. 
Cutts,  4  Maine,  31;  Wyatt  v.  Sav- 
age, ii  Maine  429;  Lincoln  v. 
Edgecomb,  28  Maine  275;  Long  v. 
Merrill,  24  Pick.  (Mass.)  157; 
Quinnin  v.  Reimers,  46  Mich.  605, 
10  N.  W.  35;  Anderson  v.  Wirth, 
131  Mich.  183,  91  N.  W.  157;  Por- 


ter v.  Gaines,  151  Mo.  560,  52  S.  W. 
376;  City  of  Maysville  v.  Truex, 
235  Mo.  619,  139  S.  W.  390;  Wolfe 
v.  Scarborough,  2  Ohio  St.  361 ; 
Marsh  v.  Stephenson,  7  Ohio  St. 
264,  70  Am.  Dec.  72 ;  Parks  v.  Boyn- 
ton,  98  Pa.  370;  Welder  v.  Car- 
roll, 29  Tex.  317;  Sellers  v.  Reed, 
46  Tex.  377;  Ware  v.  McQuinn,  7 
Tex.  Civ.  App.  107,  26  S.  W.  126; 
Knippa  v.  Umlang,  (Tex.)  27  S. 
W.  915;  Austin  v.  Esquela  Land 
Etc.,  Co.  (Tex.  Civ.  App.)  107  S. 
W.  1138;  Johnson  v.  Knippa,  (Tex. 
Civ.  App.)  127  S.  W.  905;  Booth 
v.  Clark,  59  Wash.  229,  109  Pac.  805, 
Ann.  Cas.  1912  A.  1272;  O'Brien  v. 
McGrane,  27  Wis.  446;  Pereles  v. 
Magoon,  78  Wis.  27,  46  N.  W.  1047, 
23  Am.  St.  389;  Lewis  v.  Prien,  98 
Wis.  87,  73  N.  W.  654- 


§    173  SURVEYING  AND  BOUNDARIES  154 

In  a  case  where  the  terms  of  a  will  devised  all  of  a  tract  of 
land  to  persons  named  in  severalty,  and  it  was  found,  upon  a 
survey  being  made,  that  there  was  an  excess  of  acreage  over 
the  amount  called  for  in  the  sum  total  of  all  devises,  it  was 
held  that  the  excess  would  be  apportioned  to  all  of  the  devisees 
according  as  the  amount  each  was  to  have  received  was  a  part 
of  the  whole.4  And  where  there  is  an  excess  or  deficiency  in 
the  actual  land  platted  into  lots  and  blocks,  with  intervening 
streets,  and  the  original  monuments  indicating  the  limits  of 
the  lots  have  disappeared,  each  block  should,  if  possible,  be 
treated  as  distinct,  and  the  shortage  or  surplusage  apportioned 
among  the  lot  owners,  except  in  so  far  as  possession  has  fixed 
the  limits.5  And  in  an  action  for  the  partition  of  a  tract  of 
land  among  several  owners,  in  which  judgment  for  partition 
was  rendered  by  the  court,  and  afterwards  a  survey  was  made, 
and  thereafter  all  monuments  and  corners  being  lost,  the  court 
held,  in  a  survey  to  determine  the  true  boundary  lines  between 
the  several  tracts,  that  the  main  tract  should  be  divided  by 
apportioning  the  entire  tract  to  all  of  the  owners  according  to 
their  respective  holdings  as  adjudged,  and  that  no  one  of  the 
owners  should  be  allowed  any  advantage  over  others  in  the 
division  of  excess  acreage.6 

§  173.  Excess  or  deficiency  in  north  half  of  section  in 
northern  tier  of  sections  in  a  township. — As  heretofore  inti- 
mated some  confusion  has  arisen  in  applying  this  principle  to 
sections  in  the  northern  tier  of  sections  in  a  township,  due  to 
the  failure  of  the  courts  to  recognize  the  rule  that  the  original 
survey  must  govern  as  to  standard.7  In  all  of  such  cases 
where  there  is  an  excess  or  deficiency,  the  general  rule  applies 

4Bennett  v.  Simon,  152  Ind.  490,  6McAlpine    v.     Reicheneker,     27 

53  N.  E.  649.  Kans.  257. 

"Anderson  v.   Wirth,   131    Mich.  7Ante  §  171. 
183,  9i  N.  W.  157. 


155  EXCESS  AND  DEFICIENCY  §    1 74 

and  each  owner  is  entitled  to  share  in  the  excess  and  must  bear 
his  part  of  the  deficiency,  if  any.  The  supreme  court  of  lowaT, 
has  spoken  plainly  on  this  phase  of  the  question.8  In  that  case 
the  court  says:  "But  it  is  said  that  fractions  in  subdividing 
townships  all  fall  on  the  north  and  west  sides  of  the  townships. 
That  is  true  in  making  an  entirely  new  survey ;  but  this  survey 
is  not  an  original  one ;  it  does  not  exist  at  least  on  paper.  The 
purchases  have  all  been  made  in  relation  to  it.  The  purchaser 
of  a  fractional  forty-acre  tract,  located  on  the  north  or  west 
side  of  a  township,  to  the  extent  of  the  quantity  designated  in 
that  fraction  on  the  plat,  and  by  the  field-notes  of  the  original 
survey,  purchased,  as  definite  and  determined,  a  quantity  of 
land  having  as  fixed  and  determined  relations  to  the  whole 
tract,  the  survey  of  which  is  now  lost,  as  did  any  one  who 
purchased  those  several  tracts  not  designated  as  fractional. 
The  person  who  might  purchase  a  tract  on  the  north  side  of 
the  township,  designated  on  the  official  plat  of  the  original 
survey  as  containing  thirty-nine  acres,  had  as  perfect  a  vested 
right  to  receive  thirty-nine  full  acres,  as  he  who  purchased  a 
quarter  section  in  any  other  part  of  this  body  had  to  the  160 
acres  called  for  by  his  patent."9 

§  174.  Deficiency  in  two  northern  tiers  of  sections.— The 
matter  in  this  section  is  but  a  modification  of  the  doctrine  laid 
down  in  the  preceding  section  and  where  the  government  map 
and  original  field-notes  show  all  the  sections  of  the  township  to 
be  full,  but  all  monuments  between  the  two  northern  tiers  of 
sections  are  lost,  and  surveys  based  on  established  monuments 
in  the  township  show  that  there  is  a  shortage  in  the  measure- 
ment north  and  south  of  those  two  tiers,  it  should  not  fall 
wholly  on  the  northern  tier,  but  should  be  apportioned  between 
the  two  tiers,  and  this,  although  the  survey  was  originally 

8Moreland  v.  Page,  2  Iowa  139.       4  N.  W.  136;  Jones  v.  Kimble,  19 
9Westphal  v.  Schultz,  48  Wis.  75,     Wis.  429- 


§    175  SURVEYING   AND   BOUNDARIES  156 

made  by  starting  at  the  southeast  corner  of  the  township  and 
working  north.  In  this  case  the  southern  boundary  of  sections 
10  and  ii  and  the  northern  boundary  of  sections  2  and  3  were 
known.  The  West  1/4  corner  of  section  2,  West  1/4  corner 
of  section  n,  and  the  southwest  corner  of  section  2  were  lost. 
In  order  to  find  line  between  north-half  and  south-half  of 
northwest  quarter  of  section  2,  the  court  decided  that  measure- 
ment must  be  made  between  the  southwest  corner  of  section  1 1 
and  the  northwest  corner  of  section  2,  and  the  quarter-quarter 
corner  between  West  1/4  corner  of  section  2  and  the  north- 
west corner  of  section  2  should  be  established  by  a  proportionate 
measurement  of  the  whole  line.  That  is,  proportionate  meas- 
urement should  be  made  between  known  corners.10  This  is 
sound  doctrine  and  is  no  doubt  the  law  and  should  be  followed 
in  similar  cases. 

§  175.  To  establish  sixteenth  corner  in  north  tier  oi  sec- 
tions in  township. — The  discussion  in  this  section  is  but  an 
enlargement  of  the  doctrine  discussed  in  the  two  preceding 
sections.  The  Wisconsin  court  has  laid  down  a  general  rule 
for  determining  the  location  of  the  sixteenth  section  corner  of 
the  north  tier  of  sections  in  a  township  and  can  well  be  con- 
sidered.11 That  court  says :  "Whenever  a  surveyor  is  required 
to  subdivide  a  quarter-section  bordering  on  the  north  boun- 
dary of  a  township,  he  shall  establish  the  sixteenth-section 
corner  at  a  distance  20  chains  north  of  the  quarter-section 
corner,  unless  the  quarter-section  shall  exceed  or  be  less  (in 
area)  than  the  original  survey,  in  which  case  said  sixteenth- 
section  corner  shall  be  established  at  a  greater  or  less  dis- 
tance, in  exact  ratio  to  the  excess  or  deficiency  in  the  actual 
length  of  the  quarter  line."  This  branch  of  the  subject  is 
treated  at  length  in  a  subsequent  chapter  of  the  work.12 

10James  v.  Drew,  68  Miss.  518,  "Westphal  v.  Schultz,  48  Wis. 
9  So.  293,  24  Am.  St.  287.  75,  4  N.  W.  136. 

"Post   ch.   XIX. 


157  EXCESS  AND  DEFICIENCY  §    177 

§  176.  Excess  and  deficiency  apportioned. — By  apportion- 
ing the  excess  or  deficiency  of  a  tract  of  land,  as  compared 
with  the  original  survey,  each  owner  of  any  part  of  that  tract 
will  be  given  his  equitable  portion  of  any  excess  or  will  have 
to  bear  his  equitable  portion  of  any  deficiency  thereof.  This 
is  but  just  and  the  courts  carry  out  this  principle  in  all  its 
decisions  in  a  retracement  of  original  lines.  Owing  to  adverse 
holdings  of  some  of  the  occupants  the  courts  are  not  always 
able  to  enforce  the  principle,  but,  nevertheless,  the  principle  is 
soundly  rooted  in  the  law  and  the  courts  give  heed  to  it.  In 
a  case  before  the  Indiana  court  the  appellant  was  the  owner  of 
the  south  half,  and  appellee  of  the  north  half  of  a  government 
subdivision.  By  the  original  survey  and  plat,  the  east  line  of 
said  quarter  was  38.05  chains  and  the  west  line  38.84  chains, 
and,  while  the  half-quarter  line  was  not  established,  the  plat 
assigned  20  chains  to  the  east  and  west  line  of  the  south  half 
thereof  and  18.02  chains  to  the  east  line  at  north  end.  Recent 
surveys  made  east  line  of  quarter  but  37  chains  and  west  line 
but  37  chains,  or  in  other  words,  said  quarter  contained  6.49 
acres  less  than  shown  by  original  plat.  Said  plat  marked  the 
south  part  of  said  quarter  as  containing  80  acres,  and  the  north 
part  as  containing  72.49  acres.  Patents  were  issued  to  the 
respective  parties  for  such  amounts.  It  was  held  that  the 
deficiency  of  6.49  acres  in  said  quarter  should  be  deducted 
proportionately  from  the  north  and  south  halves,  upon  the 
basis  of  80  and  72.49  acres  respectively.13 

§  177.  A  criticism  of  Missouri  court's  position  on  appor- 
tioning excess  or  deficiency  north  and  west  sections  of  town- 
ship.— States  sometimes  try  to  establish  a  rule  by  statute  for 
the  survey  of  sections  along  the  north  and  west  sides  of  a 
township  contrary  to  the  well  established  rule  discussed  above 

13Caylor  v.  Luzadder,  137  Ind. 
319,  36  N.  E.  909,  45  Am.  St.  183, 
5  Cyc.  974- 


§    177  SURVEYING  AND  BOUNDARIES  158 

The  courts  have  uniformly  condemned  such  legislation  as  being 
contrary  to  law  and  invalid.  The  state  of  Missouri  had  a 
statute  of  that  kind.  It  was  before  the  court  of  that  state,  and, 
contrary  to  the  almost  universal  position  taken  by  courts,  held 
the  law  to  be  valid.  The  court  was  in  accord  with  the  rule 
laid  down  in  the  statute.  The  surveyor  who  had  done  the 
work  criticised  by  the  court  and  contrary  to  the  statute  was 
right.1* 

In  the  former  case  the  division  line  between  the  southwest 
and  southeast  quarters  of  section  18  was  involved.  The  south 
quarter  corner  was  lost.  By  the  government  field-notes  the 
south  side  of  the  S.  E.  quarter  was  40  chains,  and  the  south 
line  of  S.  W.  quarter  was  35.42  chains,  or  the  whole  length  of 
the  south  line  of  the  section  was  75.42  chains.  A  recent  sur- 
vey made  the  distance  77.79  chains  or  an  excess  of  2.37  chains. 
The  surveyor  employed  by  defendant  insisted  that  the  south 
quarter  corner  should  be  fixed  by  apportioning  the  whole 
distance  according  to  government  survey  and  making  the 
southeast  quarter  41.25  chains  along  the  south  side,  and  the 
southwest  quarter  36.54  chains  along  the  south  side.  The 
surveyor  for  the  plaintiff  insisted  that  the  S.  E.  quarter  should 
be  40  chains  (recent  measure)  on  the  south  side,  and  all  excess 
should  be  thrown  on  the  south  side  of  the  S.  W.  quarter, 
making  such  quarter  37.79  chains  on  the  south  side.  The 
court  held  in  favor  of  the  latter.  This  was  clearly  erroneous, 
and  contrary  to  the  rule  laid  down  by  the  land  office.  The 
legislature  fell  into  error  in  that  case,  and  the  court  likewise 
erred  in  failing  to  distinguish  between  original  and  recent 
measure.  This,  of  course,  would  be  fatal  to  the  work  unless 
the  original  and  recent  measurements  were  the  same. 

The  Indiana  court  had  a  similar  question  up  for  considera- 

"Knight  v.  Elliott,  57  Mo.  317; 
Vaughn  v.  Tate,  64  Mo.  491. 


159  EXCESS  AND  DEFICIENCY  §    178 

tion  and  properly  apportioned  the  deficiency  or  deducted  it 
from  both  tracts  proportional  to  government  survey.15 
Briefly  the  facts  in  that  case  were :  A  owned  the  north  half 
and  B  the  south  half  of  the  northwest  quarter  of  section  i, 
in  a  certain  township.  The  original  survey  showed  the  east 
line  of  such  quarter-section  to  be  38.05  chains  long,  and  the 
west  line  of  such  quarter  to  be  38.48  chains  long.  The  plat 
assigned  20  chains  to  the  east  side  and  west  side  of  S.  W. 
quarter  at  south  end  thereof  and  18.05  chains  to  said  east 
line  at  north  end  and  18.48  chains  to  said  west  line  at  north 
end  thereof.  As  a  matter  of  fact,  the  east  and  west  sides  were 
but  37  chains  recent  measurement.  The  quarter  contained 
6.49  acres  less  than  160  acres.  It  was  held  that  such  deficiency 
should  be  deducted  from  both  the  south  and  north  parts  of 
the  quarter  according  to  the  original  measurement.  This  was 
proper. 

§  178.  Transfer  of  whole  tract  at  same  time — Excess  di- 
vided.— Courts  are  frequently  called  upon  to  construe  descrip- 
tions in  transfers,  contracts,  wills  and  other  instruments.  It 
is  well  to  consider  the  court's  constructions  in  such  cases.  In 
a  Missouri  case  the  court  had  under  consideration  a  will  where- 
in the  following  description  was  found:  "It  is  also  my  will 
and  desire  that  my  said  wife  shall  possess  and  enjoy  my  home 
tract  of  land  consisting  of  120  acres,  more  or  less,  so  long  as 
she  lives,  and  that  my  desire  is  that  my  three  sons,  John, 
Enoch,  and  Thomas  H.  Porter,  shall  inherit  by  virtue  of  this 
will,  said  tract  of  land  in  the  manner  following,  that  is  to  say : 
I  will  to  my  son  John  forty  acres  of  said  tract  on  the  north 
thereof  so  far  as  to  include  a  spring  of  water  thereon,  and  I 
will  to  my  son,  Enoch,  the  west  half  of  the  remaining  80 
acres  of  land;  and  I  further  will  to  my  son,  Thomas  H. 

15Caylor    v.    Luzadder,    137    Ind. 
319,  36  N.  E.  909,  45  Am.  St.  183. 


§    1/9  SURVEYING  AND  BOUNDARIES  l6o 

Porter,  the  east  1/2  of  the  remaining  80  acres  of  land."  It 
was  held  that  the  three  boys  took  an  equal  part  of  the  120 
acres  of  land,  so  called.  If  it  fell  short  of  the  120  acres 
each  must  bear  his  part  of  the  deficiency;  if  it  overrun  the 
120  acres  each  was  entitled  to  his  proportion  of  the  excess. 
The  idea  was  that  the  testator  intended,  as  shown  by  the  will, 
that  the  120  acres,  so-called,  should  be  equally  divided  among 
the  three  sons.16 

§  179.  Hold  in  proportion  to  widths  granted. — If  the  lands 
lying  between  known  monuments  or  boundaries,  be  conveyed 
at  the  same  time  by  distances,  whether  in  equal  or  unequal 
portions,  to  different  grantees  in  severalty,  there  being  no  in- 
termediate monuments,  or  other  means  of  ascertaining  the 
location,  and  the  distances  do  not  correspond  with  those  named 
in  the  deeds,  such  grantees  will  hold  in  proportion  to  the 
widths  granted  them  respectively,  in  the  deeds,  whether  there 
be  an  excess  or  deficiency  in  the  distance.17  And  in  a  case 
where  lots  adjoining  each  other  on  the  east  and  west  sides 
were  sold  at  the  same  time  to  different  purchasers,  the  sales 
being  made  by  numbers  and  by  a  reference  to  a  recorded  plat ; 
the  division  lines  not  being  fixed  by  stakes  or  other  marks; 
the  deed  of  one  grantee  fixed  the  location  of  his  lots  by  a 
known  monument  on  the  west,  while  the  other  grantee  fixed 
the  location  of  his  lots  by  a  reference  to  another  fixed  monu- 
ment on  the  east,  and  each  of  the  deeds  described  the  respec- 
tive lots  as  being  of  the  width  indicated  by  the  plat,  "more 
or  less."  Upon  actual  measurement  of  the  ground,  the  width 
thus  assigned  to  the  lots  severally  will  not  make  them  meet, 
while  the  plat  shows  they  were  intended  to  meet,  and  the 
grantor  intended  to  sell  the  whole  premises.  It  was  held  that 
the  surplus  ground  found  to  exist  will  be  proportionally  di- 

16Porter  v.  Gaines,  151  Mo.  560,       "Mosher  v.  Berry,  30  Maine  83, 
52  S.  W.  376.  50  Am.   Dec.   614. 


l6l  EXCESS  AND  DEFICIENCY  §    l8o 

vided  among  the  several  lots.18  And  in  a  case  where  fifty  foot 
lots  and  the  streets,  as  marked  on  the  plat,  occupy  the  entire 
space  between  the  north  and  south  boundaries  of  the  tract, 
any  excess  should  be  apportioned  among  all  of  the  lots  along 
which  the  measurement  was  taken;  and  an  excess  or  strip  of 
four  and  one-half  feet  along  a  boundary  line  could  not  be 
claimed  by  the  platters  or  those  claiming  under  them.19 

§  1 80.  Apportioned  among  all  of  the  lots. — Where  the  act- 
ual frontage  of  a  block  exceeds  the  sum  of  the  frontage  of  all 
of  the  lots  therein  as  marked  on  the  recorded  plat,  the  excess 
should  be  apportioned  among  all  of  the  lots  and  not  given  to 
a  single  lot  whose  frontage  differs  from  the  others.20  The 
controversy  in  the  Wisconsin  case  cited  herein  arose  over  the 
disposition  of  the  excess  of  3.48  feet  on  the  east  side  of  a  block 
and  4  feet  on  the  west  side  of  a  block  of  a  recorded  plat  in 
the  city  of  Milwaukee.  The  recorded  plat  had  noted  thereon 
the  following:  "All  full  lots  are  60  feet  wide  and  127  feet 
deep;  streets  are  80  feet  wide,  except  Main  street,  which  is 
100  feet  wide.  Scale  200  feet  to  the  inch."  Figure  32  gives 
substantially  the  data  necessary  to  an  understanding  of  the 
decision  of  the  court.  It  will  be  noted  on  east  end  of  lot  i 
are  the  figures  74.6,  and  on  the  west  end  the  figures  86.5. 
On  the  west  end  of  lot  23  are  the  figures  36.6.  According  to 
original  measure  the  frontage  on  Jefferson  street  was  674.6 
feet,  and  the  frontage  on  Milwaukee  street  was  696.6 
feet.  The  frontage  on  Jefferson  street  by  recent  measure 
was  678,08  feet  and  on  Milwaukee  street  it  was  700.6 
the  controversy  was  as  to  the  exact  location  of  the  line 
between  lots  5  and  6.  The  defendants  own  the  north  31  1/2 

18Marsh   v.   Stephenson,   7    Ohio  20Pereles  v.  Magoon,  78  Wis.  27, 

St.  264,  70  Am.  Dec.  72.  46   N.   W.   1047,  23   Am.   St.  389; 

19Booth  v.  Clark,  59  Wash.  229,  Caylor  v.   Luzadder,   137  Ind.  319, 

109   Pac.  805;   Ann.   Cas.   1912  A,  36  N.  E.  909,  45  Am.  St.  183. 
1272. 


§  i8o 


SURVEYING  AND  BOUNDARIES 


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163  EXCESS  AND  DEFICIENCY  §    l8l 

feet  of  lot  6  and  the  buildings  thereon.  The  plaintiff  owns 
lot  5.  The  question  was,  as  to  whether  or  not  the  build- 
ing on  lot  6  extends  over  the  true  line  between  lots  5  and 
6.  The  plaintiff  contended  that  the  barn  extended  over  the 
true  lines  about  i  foot,  while  the  defendants  contended  that 
the  barn  was  wholly  on  lot  6.  The  plaintiff  contended  that 
the  excess  of  3.48  feet  on  the  east  side  of  the  block  should 
be  given  wholly  to  lot  I,  while  the  defendants  contended 
that  such  excess  should  be  apportioned  to  all  of  the  lots 
on  that  side  of  the  block  according  to  their  respective 
widths.  The  court  held  that  the  excess  should  be  apportioned 
among  all  of  the  lots  on  that  side  of  the  block.  It  must  be 
remembered  that  the  widths  of  all  of  the  lots,  as  originally 
measured,  were  given  on  the  plat.  If  the  widths  of  lots  i  and 
23  had  not  been  given  on  the  plat  and  had  not  been  preserved 
the  contention  of  the  plaintiff  might  have  been  sustained. 
The  Wisconsin  court  cites  several  cases  approvingly.21 

§  181.  Excess  or  deficiency  presumed  to  cover  whole 
line. — In  a  discussion  of  this  subject  it  will  not  be  out  of  place 
to  consider  briefly  the  presumption  that  will  obtain  in  arriving 
at  a  decision  in  cases  of  excess  or  deficiency.  The  courts 
generally  hold  with  substantial  unanimity  that  where  there  is 
a  variance  between  the  recent  measurement  and  the  original 
measurement,  it  will  be  presumed,  in  the  absence  of  circum- 
stances to  the  contrary,  that  it  arose  from  imperfect  measure- 
ment of  the  whole  line,  and  not  from  any  particular  part  of 
such  line;  and  such  excess  or  deficiency  must  be  distributed 
between  the  several  lots  in  proportion  to  their  respective 

21Jones  v.  Kimble,  19  Wis.  429;  Newcomb  v.  Lewis,  31  Iowa  488; 

O'Brien  v.  McGrane,  27  Wis.  446;  Francois   v.   Maloney,  56   111.  399; 

Westphal    v.    Schultz,    48   Wis.   75,  Martz    v.    Williams,    67    111.    306; 

4  N.  W.  136;  Miller  v.  Topeka  Land  Wolfe  v.  Scarborough,  2  Ohio  St. 

Co.,   44   Kans.    354,    24   Pac.   420;  361. 
Moreland    v.    Page,    2    Iowa    I39J 


§    1 82  SURVEYING  AND  BOUNDARIES  164 

widths.22  This  is  common  sense  and  gives  to  all  of  the  claim- 
ants their  equitable  rights.  Furthermore,  it  always  tends  to 
fix  the  lines  between  the  respective  lots  at  the  same  points. 

§  182.  Where  deeds  show  intent  to  convey  whole  tract. — 
Where  the  same  grantor  conveys  to  two  persons,  to  each  one 
a  lot  of  land  limiting  each  to  a  certain  number  of  rods,  from 
opposite  known  boundaries  in  a  direction  to  meet,  if  extended 
far  enough,  and  by  measurement  the  lots  do  not  join,  when  it 
appears  from  the  same  deeds,  that  it  was  the  intention  that 
they  should  so  join,  a  modification  of  the  doctrine  stated  above 
will  be  followed.  And  still  the  doctrine  is  practically  an  af- 
firmance of  the  same  principle.  In  such  cases  a  rule  should 
be  applied,  which  will  divide  the  surplus,  over  the  measure- 
ment named  in  the  deeds,  ascertained  to  exist,  by  actual  meas- 
urement on  the  earth's  surface,  between  the  grantees,  in  propor- 
tion to  the  length  of  their  respective  lines,  as  stated  in  their 
deeds.23 

§  183.  Where  tract  supposed  to  contain  a  certain  area. — 
The  same  principle  will  be  followed  in  those  cases  where  the 
tract  conveyed  is  supposed  to  have  contained  a  certain  area, 
say  loo  acres,  and  afterwards  it  is  discovered  that  such  tract 
contains,  a  much  greater  area,  say  130  acres.  This  was  the 
case  where  commissioners  were  appointed  by  the  court  to 
divide  a  tract  of  land  between  two  parties  and  they  so  under- 
took to  divide  such  tract.  The  commissioners  supposing  the 
tract  to  contain  100  acres,  assigned  to  one  of  the  parties  55 
acres  on  the  north  side  of  the  tract,  to  extend  southward  until 
the  quantity  should  be  completed.  They  assigned  to  the  other, 
45  acres  on  the  south  side  of  the  tract  to  extend  northward 
until  the  area  should  be  completed.  At  the  time  they  made 
no  survey  of  either  parcel.  Afterwards  the  whole  tract  was 

22Newcomb   v.   Lewis,   31    Iowa         23Lincoln  v.  E  d  g  e  c  o  m  b  e,  28 
488.  Maine  275. 


165  EXCESS  AND  DEFICIENCY  §    184 

found  to  contain  130  acres  of  land.  The  court  held  that  the 
surplus  should  be  divided  between  the  two  tracts  in  proportion 
of  55  to  45.24 

§  184.  Deficiency  of  irregular  lots  not  paralleling  each 
other. — It  will  frequently  be  necessary  to  apportion  excess  or 
deficiency  in  very  irregular  lots  or  parcels  of  land.  In  such 
cases  the  surveyor  should  apply  that  rule  which  will  give  to  the 
several  interested  parties  an  equitable  proportion  of  the  excess 
or  require  them  to  bear  an  equitable  proportion  of  the  de- 
ficiency, if  there  be  a  deficiency.  Where  the  lots  do  not 
parallel  each  other,  the  surveyor  should  use  his  best  judgment. 
He  should  bring  to  bear  on  the  subject  his  originality  and  use 
the  principles  herein  set  out  in  making  divisions  and  running 
lines  in  such  cases.  In  a  Maine  case  there  were  three  parties 
interested.  A  owned  lot  7  given  on  the  plan  as  51  by  314 
rods.  B  owned  lot  71  given  on  the  plan  as  50  by  320  rods. 
These  lots  were  supposed  to  have  contained  an  area  of  100 
acres  each.  C  owned  lot  102,  the  width  of  which  at  the  point 
in  question  was  25  rods.  This  width  was  where  it  joined  lot 
7  at  the  northwest  corner  thereof.  The  measurements  were 
those  given  on  the  plan.  The  sum  total  of  these  measurements 
(length  of  lot  7  and  widths  of  lots  71  and  102)  was  389  rods. 
As  a  matter  of  fact,  the  actual  measurement  was  but  343  rods, 
or  46  rods  less  than  shown  on  the  plan.  See  Fig.  33.  The 
dotted  line  D-E  on  the  figure  represents  the  line  upon  which 
the  measurement  was  taken.  The  actual  length  of  this  line 
was  343  rods ;  the  plan  showed  the  length  to  be  389  rods.  The 
question  before  the  court  was  as  to  who  should  bear  the  de- 
ficiency of  46  rods.  The  deeds  of  all  three  parties  were  from 
the  same  grantor,  and  all  conveyed  the  land  "according  to 
the  'Holland  Plan'  ".  In  this  case  there  were  no  monuments 
marking  the  boundaries  between  the  several  owners  but  the 

24Witham  v.  Cutts,  4  Maine  31. 


§  i84 


SURVEYING  AND  BOUNDARIES 


166 


line  at  D  was  fixed  and  certain ;  so  also  was  the  point  E  on  the 
bank  of  the  river.  It  was  held  that  the  loss  by  deficiency  must 
be  borne  by  A,  B,  and  C  in  proportion  to  the  length  of  lot  7 
and  the  widths  of  lots  71  and  102.  The  court  found  that  lot 


Fiq.33 


7  should  bear  37  and  a  fraction  rods  of  the  deficiency;  lot  102 
should  bear  a  fraction  less  than  3  rods,  and  lot  71  a  fraction 
over  5  rods.  Thus  all  three  lots  bore  proportionately  the  loss 
and  their  relative  positions  remained  substantially  the  same.25 

25Wyatt  v.  Savage,  1 1  Maine  429. 


l6/  EXCESS  AND  DEFICIENCY  §    185 

§  185.  In  certain  cases  the  excess  is  not  to  be  appor- 
tioned.— In  a  Massachusetts  case  it  was  held  that  owing  to  the 
peculiar  situation,  the  excess  was  not  to  be  apportioned  but  all 
should  be  given  to  one  of  the  parties.26  In  that  case  the  owner 
of  a  tract  of  land  bounded  south  by  E  street,  and  west  by  P 
street,  conveyed  the  eastern  portion  to  A  by  deed  bounding  it 
south  on  E  street  35  feet,  and  west  on  the  grantor's  other 
land ;  and  afterwards  he  deeded  the  remainder  of  the  tract  to 
B,  bounding  it  south  on  E  street  66  feet  and  west  on  P  street. 
The  south  line  on  E  street  of  the  whole  tract  was,  in  fact,  18 
inches  more  than  101  feet:  Held  that  this  excess  was  not  to 
be  apportioned  between  A  and  B  but  should  go  entirely  to  B. 
This  decision  was  based  on  the  theory  that  the  tract  conveyed 
to  A  being  definite  and  certain  and  being  first  conveyed  left 
the  balance  of  the  land  in  the  grantor;  that  he  subsequently 
sold  all  of  said  balance  to  B.  If  all  of  the  tract  had  been  con- 
veyed at  the  same  time  to  the  two  grantees,  and  there  were  no 
monuments  marking  the  line  between  the  two  it  is  more  than 
likely  the  court  would  have  apportioned  the  excess  to  the  two 
grantees.  And  it  was  held  in  a  Maine  case  that  if  a  conveyance 
of  land,  between  certain  bounds,  are  made  to  grantees  in  sever- 
alty,  by  distances,  and  in  different  proportions,  but  covering 
the  whole  extent,  without  intermediate  monuments,  and  with- 
out other  means  of  ascertaining  the  locations,  and  the  distances 
do  not  correspond  with  those  named  in  the  deeds,  they  will 
hold  in  proportion  to  their  respective  grants,  and  this  whether 
there  be  excess  or  a  deficiency  in  the  distances.27 

26Bloch  v.  Pfaff,  101  Mass.  535.  Maine  42;    Moody   v.    Nichols,   16 

27Mosher  v.  Berry,  30  Maine  90,  Maine    23;    Rust    v.    Boston    Mill 

citing  Davis  v.  Rainsford,  17  Mass.  Corp,   6   Pick    (Mass.)    158;    Pro- 

207;    Makepeace    v.    Bancroft,    12  prietors  of  Kennebec  Purchase  v. 

Mass.   469;    Wyatt   v.    Savage,    n  Tiffany,    i   Maine   219;   Brown   v. 

Main,    429;    Loring   v.    Norton,    8  Gay,  3  Maine  126 ;  Clark  v.  Wethey, 

Maine   61 ;   Emerson  v.  Taylor,  9  19  Wend.  (N.  Y.  )  320. 


§    l86  SURVEYING  AND  BOUNDARIES  1 68 

§  1 86.  Error  in  platting  village. — In  most  cases  the  ques- 
tion of  an  excess  or  deficiency  arises  by  reason  of  an  error  of 
the  surveyor  who  made  the  original  plat  or  by  some  inaccuracies 
in  connection  therewith.  And  where  in  platting  a  village  it 
turns  out,  that,  by  mistake,  the  blocks  are  not  so  long  as  the 
plat  represents,  the  courts  of  Michigan  hold,  as  do  other  courts, 
that  the  deficiency  must  be  apportioned  between  all  of  the  lots 
of  the  block  according  to  their  apparent  size  as  shown  by  the 
plat.28  It  will  be  apparent  that  in  the  event  of  an  excess  such 
excess  must  be  apportioned  between  all  of  the  lots  of  a  block, 
thus  following  the  general  rule. 

§  187.  In  some  cases  deficiency  falls  on  fractional  lots. — 
We  have  heretofore  treated  this  subject  under  certain  condi- 
tions, where  it  was  held  that  fractional  lots  were  entitled  to 
their  just  proportion  of  excess.29  We  come  now  to  consider  a 
case  where  fractional  lots  are  required  to  bear  the  entire  de- 
ficiency. The  reason  for  the  holding  will  be  apparent  as  we 
advance.  The  professions  should  carefully  distinguish  be- 
tween the  two  cases.  And  where  a  tract  of  land  is  platted  upon 
a  map  as  containing  50  lots,  48  of  which  appear  as  regular  lots 
with  widths  of  25  feet,  and  two  of  which  are  the  divided  rem- 
nant of  what  remained  of  the  entire  tract,  after  platting  the 
regular  lots,  and  it  happens  that  the  tract  is  too  small  to  leave 
the  two  lots  as  wide  as  they  appear  upon  the  map,  after  giving 
the  regular  lots  their  full  width  it  was  held  that  holders  of  titles 
to  regular  lots  as  they  are  platted  upon  the  map  are  entitled  to 
the  full  25  feet,  and  the  widths  of  the  irregular  lots  must  be 
diminished.80  The  reason  for  this  holding  is  that  the  map 
shows  on  its  face  that  the  fractional  lots  were  intended  only  to 
cover  what  remained  after  platting  out  the  regular  lots.  If 
this  so  appears  there  is  good  reason  for  the  rule,  otherwise  not. 

28Quinnin  v.  Reimers,  46  Mich.  30Baldwin  v.  Shannon,  43  N.  J. 
605,  10  N.  W.  35.  L.  596. 

29Ante  §  180. 


169  EXCESS  AND  DEFICIENCY  §    189 

§  1 88.     Deeds  executed  by  same  grantor  at  same  time. — 

It  frequently  happens  that  the  court  is  called  upon  to  decide 
questions  of  excess  and  deficiency  where  one  part  of  the 
property  is  of  greater  value  than  the  other.  In  a  case  where 
two  deeds  executed  at  the  same  time,  by  the  same  vendor, 
each  calling  for  the  line  of  the  other  as  a  division  line,  and 
calling  for  land  within,  but  on  opposite  sides  of  the  same  sur- 
vey, will  be  held  to  convey  the  entire  tract,  whether  it  be 
greater  or  less  in  quantity  than  estimated,  and  the  excess  must 
be  divided  between  the  two  in  proportion  to  the  quantity  con- 
veyed to  each,  irrespective  of  values,  in  the  absence  of  facts 
showing  that  equity  would  require  the  application  of  a  dif- 
ferent rule.31  In  the  case  last  cited  the  supposed  amount  of 
land  was  1,111  acres.  It  was  owned  by  A.  He  sells  to  B  700 
acres  off  north  side  of  tract;  and  to  €411  acres  off  south  side 
of  tract.  These  tracts  lay  adjacent.  The  wording  in  the 
descriptions  showed  intent  that  the  two  tracts  should  come 
together.  The  excess  was  74.4  acres.  The  court  held  that  it 
should  be  divided  in  proportion  of  700  to  411.  The  court 
declined  to  consider  the  difference  in  values  of  the  two  ends. 

§  189.  Excess  in  irregular  tracts. — In  the  division  of  ex- 
cess or  shortage  in  very  irregular  tracts  of  land  very  nice  ques- 
tions are  put  up  to  the  surveyor  and  later  to  the  bar  and  the 
courts.  It  is  not  always  easy  to  lay  down  rules  in  advance 
which  fit  all  cases.  It  is  the  purpose  of  the  author  to  give 
instances  of  all  kinds  of  problems  heretofore  before  the  courts 
for  decision  in  the  hope  that  the  suggestions  herein  may  aid 
the  reader  to  devise  the  proper  method  to  be  followed  under 
varied  circumstances. 

In  a  Pennsylvania  case  there  was  a  considerable  tract  of 
land  which  was  divided  into  four  tracts  and  certain  lines  run 
and  certain  measurements  taken  and  recorded.  Tracts  A,  B 

31  Sellers  v.  Reed,  46  Tex.  377. 


§    189  SURVEYING   AND   BOUNDARIES  I/O 

and  C  were  laid  out  into  a  block  but  the  lines  of  division  were 
not  run  at  the  time.  Conveyances  were  executed  before  lines 
were  run.  All  three  tracts  had  a  common  western  boundary, 
the  northern  and  southern  ends  of  which  were  clearly  marked 
on  the  ground.  The  total  length  of  the  common  western 
boundary  exceeded  the  aggregate  lengths  of  the  western  lines 
of  the  tracts  called  for  in  the  survey.  Tracts  A  and  B  had 
also  a  common  eastern  boundary,  the  northern  and  southern 
ends  of  which  called  for  corners  on  an  adjacent  tract,  which 
corners  were  also  found  marked  on  the  ground.  The  common 
eastern  boundary  line  of  tracts  A  and  B  was  greater  than  the 
aggregate  lengths  of  the  western  lines  of  those  tracts  as  called 
for  in  the  survey.  Held,  that  in  order  to  fix  the  division  line 
between  tracts  A  and  B,  the  proper  course  was  to  divide  pro- 
portionally between  all  of  these  tracts  the  surplus  on  the 
western  line,  and  to  do  the  same  on  the  eastern  line  as  be- 
tween tracts  A  and  B  and  then  to  run  a  line  from  west  to  east 
between  those  points,  thus  ascertained  on  the  east  and  west 
lines  respectively,  to  be  the  points  of  division  between  the 
tracts.  Fig.  34.32  In  such  figure  the  original  lots  platted  are 
represented  by  the  letters  A,  B  and  C.  Lot  A  was  platted  as 
380  rods,  B  as  430  rods,  and  C  as  440  rods.  No  lines  were 
run.  There  were  known  monuments  at  M,  N,  O  and  P  and 
were  undisputed.  It  was  admitted  that  there  was  a  surplus 
of  25  rods  along  the  western  line  and  23.4  rods  along  the 
known  eastern  common  boundary.  The  line  OP  was  the 
common  eastern  boundary  of  lots  A  and  B  and  was  given  on 
the  plat  as  444  rods.  Found  on  measurement  to  be  467.4 
rods.  The  entire  common  western  boundary  was  found  to  be 
1,275  rods.  The  tracts  marked,  "Parks,"  "Lewis,"  "Boyn- 
ton,"  are  those  carved  out  of  the  three  original  lots.  Their 
boundaries  are  fixed  by  a  reference  to  the  points  O  and  P  in 

»2Parks  v.  Boynton,  98   Pa.  370. 


EXCESS  AND  DEFICIENCY 


§    I89 


part.  The  surplusage  is  represented  by  the  tract  "S."  Line 
X-Y  is  the  northern  boundary  of  such  surplusage.  Line  E-F 
is  southern  boundary  of  surplusage.  Line  R-K  represents 
the  line  decided  by  the  court  to  properly  divide  the  surplusage 


V) 


m 

* 


X 

id 


<NJ 

v 


/'/     Boynl-on 


o 
a. 


-$"5  Campbell 


8? 


Lewis 


Rq.34 


so  that  lot  A  will  be  given  its  proper  proportion  of  7.617  rods 
on  the  west  and  6.9828  rods  on  the  east.  The  balance  of  the 
surplusage  is  divided  between  the  other  two  lots  as  indicated. 
Thus  it  will  be  seen  that  by  measuring  for  lot  A  from  the 
southwest  corner  and  for  lots  B  and  C  from  the  northwest 
corner  of  the  original  tract  there  would  be  a  surplusage  of  25 


§    I9O  SURVEYING   AND   BOUNDARIES  172 

rods  on  the  west  represented  by  "S."  The  surplusage  on  the 
east,  as  indicated,  is  23.4  rods.  The  question  is  where  should 
the  boundary  lines  between  lots  A  and  B  be  established.  Ap- 
portioning the  25  rods  on  the  west  we  have  387.610,  438.589, 
and  448.795  rods  in  widths  respectively  for  lots  A,  B  and  C. 
Measure  north  from  southwest  corner,  Point  N,  387.610  rods 
to  point  "R"  which  will  be  the  point  of  division  of  the  western 
line.  Apportioning  the  excess  of  23.4  rods  on  part  of  east 
boundary  for  the  three  lots  will  give  386.9828,  437.9017,  and 
448.5152  rods  widths  respectively  of  A,  B,  and  C  on  east 
common  boundary.  To  locate  point  in  east  boundary,  measure 
north  6.9828  rods  from  F  to  point  K,  which  fixes  the  point 
in  east  boundary.  Connect  R  and  K.  R-K  is  the  boundary 
between  the  original  lots  A  and  B. 

§  190.  Separate  surveys  and  successive  conveyances. — 
Where  an  original  tract  of  land  is  subdivided  by  distinct  and 
separate  surveys,  the  second  survey  is  subservient  to  the  first, 
and  must  bear  any  subsequently  discovered  deficiency,  and, 
in  such  cases,  the  doctrine  of  apportionment  can  not  be  in- 
voked. Likewise  where  there  are  separate  conveyances  at 
different  periods  from  unplatted  lands,  by  metes  and  bounds, 
the  rule  does  not  apply.  The  first  conveyances  would  be  en- 
full  amount  purchased ;  the  second  next  in  order ; 
the  last  would  be  entitled  to  all  of  the  surplusage,  if  any,  and 
must  stand  the  deficiency,  if  any  there  be.33  In  the  latter  case 
cited  the  owner  of  a  tract  of  land  bounded  by  E  street  and  west 
by  P  street  conveyed  the  eastern  portion  to  A  by  deed  bound- 
ing it  south  on  E  street  30  feet  and  west  on  grantor's  other 
land;  and  subsequently  he  deeded  the  rest  of  the  tract  to  B, 
bounding  it  south  on  E  street  66  feet,  and  west  on  P  street. 
The  southern  line  on  E  street  of  the  whole  tract  was,  in  fact, 

83Adams  v.  Wilson,  137  Ala.  632, 
34  So.  831;  Bloch  v.  Pfaff,  101 
Mass.  535. 


173  EXCESS  AND  DEFICIENCY  § 

1 8  inches  more  than  99  feet,  the  length  recorded  on  the  plat. 
It  was  held  that  the  excess  of  18  inches  was  not  to  be  appor- 
tioned but  to  go  wholly  to  B. 

The  state  of  Washington  has  considered  this  question  in  a 
well-reasoned  case  and  lays  down  the  rule :  "The  grantee,  first 
in  time,  of  a  portion  of  a  tract  set  off  by  metes  and  bounds, 
without  reference  to  other  conveyances,  is  not  required  to  yield 
any  portion  of  his  land  to  satisfy  a  deficiency  in  a  subsequent 
overlapping  grant  from  the  common  grantor;  the  rule  of 
apportioning  excess  or  deficiency  having  no  application/'34 
In  all  such  cases  the  title  should  be  traced  back  to  a  common 
grantor,  in  order  to  find  the  earlier  conveyance,  and  a  correct 
reading  thereof,  as  well  as  a  correct  reading  of  subsequent 
conveyances. 

§  191.  Irregular  lots  may  take  all  excess  or  stand  all  de- 
ficiency.— In  the  event  the  irregular  lot  appears  on  the  plat 
without  notation  of  its  size,  and  all  of  the  other  lots  are 
regular  and  of  definite  size  and  so  noted  on  the  plat,  it  is  the 
general  rule  that  the  irregular  lot  must  bear  any  deficiency 
and  is  entitled  to  any  excess  found  in  a  measurement  of  the 
original  lines.  This  of  course  pre-supposes  that  the  original 
lot  lines  and  monuments  of  the  particular  tract  have  been  lost 
or  obliterated.35 

In  the  latter  case  it  was  held  that,  where  a  tract  of  land  is 
platted  upon  a  map  as  containing  50  lots,  48  of  which  appear 
as  regular  lots,  with  width  of  25  feet,  and  two  of  which  are 
the  divided  remnant  of  what  remained  of  the  entire  tract, 
after  platting  the  regular  lots,  and  it  happens  that  the  tract 
is  too  small  to  leave  two  lots  as  wide  as  they  appear  upon  the 
map,  after  giving  the  regular  lots  their  full  widths,  the  holder 
of  a  title  to  the  regular  lots,  as  they  are  platted  upon  the  map, 

34Hruby    v.    Lonseth,    63    Wash.       35Baldwin  v.  Shannon,  43  N.  J.  L. 
589,   116   Pac.  26.  596. 


SURVEYING  AND  BOUNDARIES 


174 


01 


o 

¥ 


(Jl 

o 


CX> 


Street 


Fiq.35 


175  EXCESS  AND  DEFICIENCY  §    193 

is  entitled  to  the  full  25  feet  and  the  widths  of  the  irregular 
lots  must  be  diminished. 

In  another  case  it  was  held  that,  "Where  the  recorded  plat 
of  a  block  specifies  the  frontage  of  each  lot,  except  as  to  one, 
any  deficiency  in  the  width  of  the  block  will  fall  on  that  lot, 
and  the  width  will  be  the  length  of  the  block,  minus  the  sum  of 
the  widths  of  the  other  lots."36  Referring  to  Fig.  35,  the  dis- 
tance given  on  the  plat  represents  the  distances  taken  from 
the  recorded  plat.  It  will  be  seen  that  lot  3  is  the  only  lot 
whose  width  is  not  given  on  the  plat.  This  lot  then  must 
suffer  any  deficiency  and  will  gain  any  excess.  The  deficiency 
in  the  length  of  the  block  on  the  south  side  is  12  feet.  This 
12  feet  must  be  taken  from  lot  3. 

§  192.  Replatting  of  original  block. — It  must  not  be  for- 
gotten, however,  that  in  case  of  replatting  an  original  plat  or 
parts  thereof  into  smaller  divisions,  as  for  instance,  platting  a 
large  lot  of  a  certain  block  into  new  lots,  the  general  rule 
applies.  For  instance,  suppose  lot  10,  Fig.  35,  should  be 
replatted  into  four  new  lots  and  that  the  four  new  lots  be 
sold  successively  until  all  were  disposed  of.  If  it  be  found 
that  there  was  an  excess  in  the  lot  according  to  original  meas- 
urement, that  excess  must  be  divided  between  the  several  lots 
in  the  replatted  portions.  And  if  there  be  a  deficiency  all  lots 
must  bear  their  respective  proportion  of  such  deficiency.  The 
same  reason  for  this  rule  is  to  be  found  in  the  reason  for  the 
general  rule,  for  in  fact  the  replat  becomes  an  "original"  plat 
and  the  general  rule  applies.37 

§  193.  Dimensions  each  lot,  except  one  irregular  lot,  de- 
clared.— Where  all  of  the  lots  in  a  block,  except  one  irregular 
lot,  are  declared  on  the  plat  and  there  proves  to  be  an  excess 
that  lot  will  be  entitled  to  such  excess,  and  if  there  be  a  de- 

36Toudouze  v.  Keller,   (Tex  Civ.       37O'Brien   v.   McGrane,   27   Wis. 
App.)   118  S.  W.  185.  446. 


§    193  SURVEYING  AND  BOUNDARIES  176 

ficiency,  that  lot  must  bear  such  deficiency.38  In  a  Wisconsin 
case  the  location  of  the  corners  of  a  strip  of  land  on  a  river 
were  undisputed.  The  .land  was  platted  in  1838,  and  the 
direction  and  distance  of  each  intervening  lot  and  street  boun- 
dary from  one  of  the  points  was  stated  on  the  plat,  but  the 
frontage  of  the  last  lot  at  the  other  end  of  the  street  was  not 
given.  A  surveyor,  on  resurveying  the  strip,  fixed  the  front- 
age of  this  lot  and  laid  out  the  lines  of  the  other  lots,  changing 
some  of  them  from  50  to  65  feet.  It  was  held  that  the  survey 
was  in  violation  of  the  rule  that  when,  in  subdividing  a  space, 
the  surveyor  declares  the  dimensions  which  he  has  given  to 
each  of  the  subdivisions  and  leaves  a  space  without  designating 
its  dimensions,  the  presumption  is  that  he  placed  the  remainder 
into  the  unmeasured  portion,  and  was  not  entitled  to  much 
weight  as  evidence  of  the  original  location  of  the  lots.39  See 
Fig.  36.  The  lot  in  dispute  was  lot  46.  The  points  A  and  E 
were  undisputed  and  were  known.  No  other  corners  were 
known.  The  width  of  the  irregular  lot  on  river  front,  the 
last  lot  surveyed,  46,  was  not  given  on  the  plat  and  was  not 
known.  The  widths  of  all  of  the  other  lots  were  given  on  the 
plat.  The  recent  survey  of  the  fronts  of  these  lots  made  the 
distance  from  35  to  40  feet  greater  than  the  sum  total  of  all 
the  lots  whose  widths  were  given  on  the  plat  plus  a  distance  of 
some  5.83  feet  which  was  allowed  for  the  frontage  of  the 
irregular  lot,  46.  The  defendants  contended  that  the  lots 
should  be  accorded  the  various  widths  given  on  the  plat  and 
that  some  35  to  40  feet  surplus,  so  to  speak,  given  to  lot  46, 
the  last  lot  platted.  The  plaintiff  claimed  that  the  surplus 
should  be  apportioned  among  the  several  lots  according  as 
their  widths  respectively  are  to  the  whole  length.  But  the 
court  held  adversely  and  in  its  opinion  declared  that  the  several 

s8 Ante  §  187. 

3»Pereles  v.  Gross,  126  Wis.  122, 
105  N.  W.  217,  no  Am.  St.  901. 


177 


EXCESS  AND  DEFICIENCY 


§    193 


lots,  aside  from  the  last  lot,  46,  should  be  given  the  widths 
noted  on  the  plat  and  all  excess  thrown  on  the  irregular  lot. 
The  recent  survey,  made  in  1876,  shows  that  the  distance  from 
the  northeast  corner  of  lot  46  to  the  point  E  exceeds  the  total 


Fiq.36 


of  the  widths  of  the  several  lots,  as  given  in  the  original  plat, 
by  37.96  feet,  subject  to  the  question  whether  the  north  end 
of  Johnson  street  should  be  62  or  66  feet.  If  only  62  feet 
the  surplusage  should  be  4  feet  less.  The  figures  along  the 
street  at  the  ends  of  the  lots  are  the  distances  given  in  the 


§    194  SURVEYING   AND  BOUNDARIES  178 

original  plat.  The  court  holds  that  the  original  survey,  having 
left  the  width  of  lot  46  unmarked  on  the  plat,  it  must  be  pre- 
sumed that  all  surplus,  if  any,  belonged  to  that  lot.  One  of 
the  reasons  why  the  recent  surveyor  made  the  arbitrary  di- 
visions of  the  widths  of  the  several  lots  was  that  by  so  doing 
it  tended  to  bring  the  streets  running  from  the  river  to  Water 
street,  practically  in  line  with  those  running  south.  But  the 
court  says  that  such  fact  was  no  evidence  of  the  boundary  of 
the  lots  unless  coincidence  of  the  street  lines  actually  existed 
in  the  original  plat,  which  was  not  the  case.  As  to  whether 
or  not  there  was  such  coincidence  of  lines,  was  a  question  for 
the  jury.  In  the  diagram  we  have  drawn  the  lot  lines  in  one 
block  only,  that  in  which  lot  46  is  situated. 

§  194.  Permanent  monuments  must  not  be  moved  in  ap- 
portioning excess  or  deficiency. — It  is  the  law  that  excess  or 
deficiency  can  only  be  distributed  between  permanent  or 
known  monuments.  It  would  not  do  to  move  any  such  points. 
If  original  monuments  can  be  found  they  must  remain.  Hence, 
if  a  lot  or  tract  of  land  has  its  corners  fixed  by  monuments 
which  can  be  found,  and  although  such  lot  or  tract  is  a  part  of 
a  larger  tract  which  over-runs  original  measurement,  no  part 
of  the  excess  can  be  given  to  such  lot  or  tract.40  In  the  case 
later  cited  the  facts  were  that  in  1853,  G  was  the  owner  of  a 
tract  of  land  1,157  ^eet  north  and  south  by  1,188  feet  east  and 
west.  He  platted  it  into  lots  and  streets ;  had  the  plat  recorded, 
and  sold  lots  with  reference  thereto.  Permanent  monuments 
were  planted,  marking  the  sides  of  the  streets.  One  street, 
Cheltenham  Avenue,  was  60  feet  wide  and  506  feet  north  of  a 
15  foot  alley  along  the  south  side  of  the  tract.  The  plat 
covered  only  a  distance  of  1,107  ^eet  south  to  north.  The 
distance  or  size  of  the  tract  supposed  to  have  been  platted  was, 

40Williams  v.  St.  Louis,  120  Mo. 
403,    25    S.    W.   561. 


179  EXCESS  AND  DEFICIENCY  §    1 94 

as  above  noted,  1,157  feet  or  50  feet  longer.  The  owners  of 
lots  south  of  the  avenue  claimed  that  one-half  of  such  50  feet, 
or  25  feet,  should  be  given  and  added  to  their  said  lots,  making 
them  531  feet.  In  order  to  do  this  it  would  be  necessary  to 
move  the  whole  avenue  25  feet  further  north  and  also  cut  off 
25  feet  from  the  south  ends  of  the  lots  lying  north  thereof. 
The  plat  designated  the  lots  south  of  the  avenue  as  506  feet 
long.  The  plaintiffs  insist  that  they  can  move  the  street  25 
feet  to  the  north  and  thus  disregard  permanent  monuments 
long  planted  and  maintained.  But  the  court  says :  "It  must 
be  apparent  that  it  would  create  confusion  if  individual  own- 
ers of  lots  could  thus  encroach  upon  the  public  highways, 
designated  by  fixed  monuments,  duly  recorded  in  the  public 
records."*1 

^Williams  v.  St.  Louis,  120  Mo. 
408,  25  S.  W.  561. 


CHAPTER  XI 

MEANDER  CORNERS  AND  MEANDER  LINES 

Sec.  Sec. 

195-  Generally.  203.    Lakes      and      ponds      within 

196.  Meander  lines.  boundaries    of    single    sec- 

197.  Reservation  or  park  bounda-  tion. 

ry  not  a  meander  line.  204.    Location  of  island  in  lake  or 

198.  Meander   run  at   mean   high-  river. 

water  mark.  205.     Meander    corners    not    to    be 

199.  When  streams  are  meandered.  exposed  to  waves  and  ice. 

200.  Shallow  streams  not  general-      206.     Lands  unsurveyable. 

ly  meandered.  207.    Mistake  or  fraud  in  running 

201.  Where   meander    corners    es-  meander  line. 

tablished.  208.    Meander  line  bounding  marsh. 

202.  Meanders    of     lakes,    ponds,      209.    Bayou  a  boundary  line. 

bayous.  210.    Variation    between    plat    and 

field-notes. 

§  195.  Generally.— In  this  chapter  we  treat  briefly  of  the 
instructions  of  the  land  department  to  the  government  sur- 
veyors with  reference  to  the  running  of  meander  lines  and 
planting  of  meander  corners.  These  instructions  are  followed 
by  the  surveyor-general  and  his  deputies  at  this  time.  In 
retracing  meander  lines  and  re-establishing  lost  or  obliterated 
meander  corners  the  local  surveyor  should  have  an  intimate 
knowledge  of  those  instructions  and  also  any  special  instruc- 
tions which  may  have  been  followed  in  making  the  original 
survey  in  a  given  case. 

By  a  careful  examination  of  the  field-notes  in  a  given  sur- 
vey, the  surveyor  will  have  sufficient  data  in  most  cases  to 
enable  him  to  do  the  work  properly.  The  more  important  rules 
of  the  department  will  be  found  in  this  chapter.  The  refer- 

180 


l8l  MEANDER  CORNERS  AND  MEANDER  LINES  §    196 

ences,  in  the  main,  are  to  the  "Manual  of  Surveying  Instruc- 
tions for  the  Survey  of  the  Public  Lands,  1902,"  issued  by  the 
government.  We  have  quoted  quite  freely  from  the  manual, 
to  the  end  that  the  professions  may  have  an  exact  understand- 
ing of  the  rules  promulgated. 

While  we  cite  a  limited  number  of  cases  in  this  chapter  yet, 
in  the  main,  we  defer  the  citations  of  authorities  to  a  later 
chapter  in  the  work.1  The  questions  discussed  in  that  chapter 
pertain  to  principles  closely  related  to  meander  lines,  as  accre- 
tions, avulsion,  and  riparian  rights  in  general. 

§  196.  Meander  lines. — A  meander  line  is  one  run  along  a 
stream  or  body  of  water  for  the  purpose  of  establishing  the 
course  of  the  bank  of  such  stream  or  body  of  water,  and  to 
procure  data  with  which  to  plat  fractional  sections  and  com- 
pute the  area  thereof.2 

Meander  lines  are  not  boundaries  and  are  not  run  along  a 
national  park,  a  reservation,  reserve  or  other  tract  of  land. 
They  do  not  limit  the  extent  of  land  adjacent  thereto,  and 
should  the  stream  or  body  of  water,  dry  up  or  recede,  the 
riparian  owner's  property  would  follow  the  ever-changing 
shore  line  and  he  would  own  the  land  left  dry  by  the  recession. 

3  Post  ch.  XIV.  263,   60   N.    W.   618;    McCrath   v. 

2St.  Paul  &c.  R.  R.  Co.  v.  Schur-  Myers,  126  Mich.  204,  85  N.  W. 

meir,  7  Wall.  (U.  S.)  272,  19  L.  712;  Olson  v.  Thorndike,  76  Minn, 

ed.  74 ;  Mitchell  v.  Smale,  140  U.  400,  79  N.  W.  399 ;  James  v.  Howell, 

S.  406  35  L.  ed.  442,  n  Sup.  Ct.  41  Ohio  St.  696;  Barnhart  v.  Ehr- 

819;  Home  v.  Smith,  159  U.  S.  40,  hart,  33  Ore.  274,  54  Pac.  195; 

40  L.  ed.  68,  15  Sup.  Ct.  988;  Har-  Pratsch  v.  Aberdeen  Packing  Co., 

din  v.  Jordan,  140  U.  S.  380,  35  L.  7  Wash.  346,  35  Pac.  123 ;  Mendota 

ed.  433,  ii  Sup.  Ct.  808;  Freeman  v.  Club  v.  Anderson,  101  Wis.  479,  78 

Bellegarde,  108  Cal.  179,  4i  Pac.  N.  W.  185;  St.  Anthony  Falls 

289,  49  Am.  St  76;  Fuller  v.  Shedd,  Water  Power  Co.  v.  St.  Paul  Water 

161  111.  462,  44  N.  E.  286,  33  L.  R.  Comrs.,  168  U.  S.  349,  42  L.  ed.  497, 

A.  146,  52  Am.  St.  380;  Sizor  v.  18  Sup.  Ct.  157;  Hinckley  v.  Peay, 

Logansport,  151  Ind.  626,  50  N.  E.  22  Utah  21,  60  Pac.  1012;  Olson  v. 

377,  44  L.  R.  A.  814 ;  Grant  v.  Huntamer,  6  S.  Dak.  364,  61  N.  W. 

Hemphill,  92  Iowa  218,  59  N.  W.  479. 


§    197  SURVEYING   AND  BOUNDARIES  l82 

This  is  on  the  assumption  that  such  change  is  slow  and  imper- 
ceptible. Should  the  change  be  sudden  and  observable  from 
day  to  day  a  different  rule  would  apply,  as  we  shall  see  here- 
after.3 

§  197.  Reservation  or  park  boundary  not  a  meander  line. — 
Ever  since  the  enactment  of  the  law  pertaining  to  the  survey 
of  the  public  lands,  under  the  rectangular  system,  it  has  been 
the  practice  in  the  survey  of  lands  fronting  on  large  streams 
or  other  bodies  of  water  to  run  meander  lines  along  the  shore 
of  such  waters.  It  is  not,  however,  proper  to  run  such  lines 
along  parks,  reserves,  mining  claims,  or  similar  reservations. 
The  lines  run  along  the  latter  are  boundary  lines,  while  a 
meander  line  is  not  a  boundary  line  at  all.  The  mere  fact  that 
an  irregular  line  must  be  run  does  not  entitle  such  line  to  be 
called  a  meander  line.  To  the  latter  proposition  there  is  one 
apparent  exception,  namely;  where  such  irregular  boundary 
line  of  park  or  other  reserve  follows  closely  a  stream  or  body 
of  water.  In  that  event  such  line  might  possibly  be  termed  a 
meander  line,  and  still  it  may  be  doubted  whether  the  rights 
of  a  riparian  owner  would  apply  in  such  cases.  The  rights 
of  a  riparian  owner,  which  exist  on  a  meander  line,  do  not 
apply  to  other  irregular  lines  described  above.  The  latter  are 
boundary  lines  and  limit  the  extent  of  the  possession  of  the 
owner  of  the  land  adjacent  thereto.4 

§  198.  Meander  run  at  mean  high-water  mark. — It  is  a  rule 
of  the  department  that  meanders  are  to  be  run  at  mean  high- 
water  mark.  This  means,  according  to  some  of  the  decisions, 
that  it  is  to  be  determined  from  the  river  bed,  and  it  is  held 
that,  that  only  is  river  bed,  "which  the  river  occupies  long 
enough  to  wrest  it  from  vegetation."  Hence,  high- water 
mark  would  lie  beyond  the  part  wrested  from  vegetation.5 
And  the  courts  of  Pennsylvania  have  defined  a  bank  "as  the 

8Post  ch.  XIV.  "Houghton  v.   Chicago  D.  &  M. 

*Manual  (1902)  §  153.  Ry.  Co.,  47  Iowa,  370. 


183  MEANDER  CORNERS  AND  MEANDER  LINES  §    1 99 

continuous  margin  where  vegetation  ceases,  and  the  shore  is 
the  sandy  space  between  it  and  low-water  mark/'8 

The  decisions  are  practically  unanimous  that  a  meander 
line  is  not  a  boundary  line.7  It  does  not  mark  or  limit  the 
boundary,  and  the  owner's  rights  extend  to  the  water's  edge. 
It  was  held  in  an  Iowa  case  that,  with  reference  to  a  navigable 
river,  like  the  Des  Moines,  high-water  mark  is  the  boundary 
line.8  This  may  be  above  or  below  the  meander  line.  When 
by  action  of  the  water  the  river  bed  changes,  high- water  mark 
also  changes.  If  the  change  is  gradual  the  riparian  owner 
follows  the  stream  in  its  changes.9  The  fact  is  that  the  location 
of  the  meander  line  does  not  limit  the  boundaries  of  the  ripa- 
rian owner.10  It  is  not  always  possible  or  feasible,  in  meander- 
ing a  body  of  water,  to  follow  all  of  the  minute  windings  of 
the  high-water  line.  The  surveyor  should  follow  the  general 
course  and  will  run  his  meander  line  substantially  along  the 
line  of  high-water  mark.  Where  it  is  impossible  to  carry  the 
line  along  such  high-water  mark,  the  surveyor  should  enter  in 
his  field-notes  the  distances,  at  different  points,  from  such 
mark.11  The  surveyor  designates  the  particular  bank  of  the 
stream,  as  the  "right  bank,"  or  the  "left  bank."  The  right 
bank  of  the  stream  is  on  the  right  hand  side,  and  the  left  bank 
of  the  stream  is  on  the  left  hand  side  as  one  proceeds  down 
stream.12 

§  199.  When  streams  are  meandered. — All  navigable  rivers 
are  required  to  be  meandered.  All  other  rivers,  "the  right 
angle  width  of  which  is  three  chains  and  upwards,"  are  also 

6Mills  v.  Buchanan,  14  Pa.  59.  9Sayers  v.  Lyons,  10  Iowa  249. 

7St.  Paul  &  C.  R.  Co.  v.  Schur-  10Manual  (1902)  §  154. 
meir,  7  Wall.  (U.  S.)  286,  19  L.  "Manual  (1902)  §  155. 
ed.  78.  12Manual  (1902)  §  156, 

8Sayers  v  Lyons,  10  Iowa,  249. 
Wendell   v.    People,   8   Wend    (N. 
Y.)   183,  22  Am.  Dec.  635. 


§    2OO  SURVEYING   AND   BOUNDAFIES  184 

required  to  be  meandered.  These  should  be  meandered  on 
both  banks  at  ordinary  high-water  mark.  The  surveyor  is 
required  to  take  the  general  courses  and  distances  of  their 
"sinuosities"  and  enter  the  same  in  his  notes  of  the  survey. 
Other  rivers  will  not  be  meandered,  except  streams  less  than 
three  chains  in  width  and  which  "are  so  deep,  swift,  and 
dangerous  as  to  be  impassable  throughout  the  agricultural 
season,"  may  be  meandered  in  such  cases  where  good  agricul- 
tural land  along  the  shores  make  it  advisable  it  be  separated 
into  fractional  lots.  And  still  such  meander  surveys  are  sub- 
ject to  be  rejected  in  cases  where  it  turns  out  to  be  unneces- 
sary.18 It  seems  in  all  such  cases  the  necessity  is  subject  to 
approval  of  the  main  office. 

§  200.  Shallow  streams  not  generally  meandered. — Shal- 
low streams  in  which  there  is  no  well  defined  bank  or  per- 
manent channel  should  not  be  meandered.  But  if  the  stream 
is  a  tide-water  stream,  whether  more  or  less  than  the  ordinary 
width  of  three  chains  it  should  be  meandered  at  "ordinary 
high-water  mark,  as  far  as  tide-water  extends."14  Evidently 
this  rule  is  influenced  by  the  common-law  rule  for  determining 
a  navigable  stream.  There  is  also  another  consideration  in 
all  such  cases.  A  stream  in  which  the  tide  ebbs  and  flows 
would  be  devoid  of  vegetation  to  high-water  mark  and,  under 
the  old  rule,  the  bed  thereof  would  be  the  property  of  the 
sovereign. 

§  20 1.  Where  meander  corners  established. — Meander  cor- 
ners are  required  to  be  established  at  every  point  where  either 
a  standard,  township,  or  section  line  intersects  a  meanderable 
shore,  or  meanderable  stream.  These  corners  are  established 
at  the  time  of  running  the  lines.  They  are  called  meander 
corners.  The  surveyor  will  commence  at  one  of  these  corners 
in  running  out  the  meander  line.  He  will  follow  the  general 

"Manual  (1902)  §  157.  "Manual   (1902)   §  158. 


185  MEANDER  CORNERS  AND  MEANDER  LINES  §T  2O2 

line  of  high-water  mark  and  take  bearings  of  the  several  parts 
of  the  line  and  measure  the  same.  This  data  will  be  returned 
by  him.  He  will  note  therein  the  approach  to  all  meander 
corners.  Meander  corners  should  be  permanently  marked  and, 
where  it  can  be  done,  bearings  taken  to  trees.15  All  courses 
are  required  to  be  compass  courses.  They  are  taken  from  a 
meridian  and  not  from  a  latitudinal  line.  "Transit  angles" 
showing  the  deviation  from  the  preceding  course  are  not 
allowed  in  meandering.16  The  courses  will  be  given  by  the 
nearest  quarter  degree  and  will  approximate  correctness  and 
be  sufficient  for  all  practical  purposes.  Meander  lines  as  well 
as  rectangular  will  be  examined  in  the  field  before  acceptance.17 
The  crossing  distance  between  meander  corners  on  the  same 
line  should  be  noted.  And  the  true  bearing  and  distance  be- 
tween corresponding  meander  corners  will  be  ascertained  by 
triangulation  or  by  direct  measurement.  Both  shores  should 
be  protracted.18 

§  202.  Meanders  of  lakes,  ponds,  bayous. — All  lakes,  nav- 
igable bayous  and  ponds  of  the  area  of  twenty-five  acres  or 
more  are  to  be  meandered.  The  surveyor  will  commence  at 
the  meander  corner  and  proceed  as  described  above  for  nav- 
igable streams.  He  will  take  the  courses  and  distances  from 
said  corner  of  the  entire  margin  of  the  body  of  water.  He 
shall  note  the  intersection  of  all  meander  corners  established 
thereon.19  All  streams  flowing  into  the  lake,  river,  pond  or 
bayou  together  with  the  width  thereof  will  be  noted.  Position, 
depth  and  size  of  springs  encountered  and  whether  they  are 
fresh  or  mineral  shall  be  noted.  The  elevation  of  banks  of 
streams  or  bodies  of  water,  and  the  height  of  water-falls 
shall  be  taken  and  noted  in  the  record.20 

"Manual  (1902)  §  158.  18Manual   (1902)   §  162. 

16Manual  (1902)  §  159.  lsManual   (1902)   §  164. 

"Manual  (1902)  §  160.  20Manual   (1902)   §  165. 


§    2O3  SURVEYING  AND   BOUNDARIES  l86 

§  203.  Lakes  and  ponds  within  boundaries  of  single  sec- 
tion.— Before  a  lake  or  pond  situated  wholly  within  a  section 
can  be  meandered  it  must  be  located  with  reference  to  two 
nearest  corners  on  different  sides  of  the  lake  or  pond.  This  is 
done  by  running"  two  lines  from  such  points  to  the  body  of 
water  and  noting  their  courses  and  lengths.  If  these  lines  be 
coincident  with  unsurveyed  subdivisional  lines  of  the  section, 
that  fact  must  be  stated  in  the  notes.  At  the  intersection  of 
said  lines  with  the  shore  of  the  lake  or  pond  special  meander 
corners  will  be  established.  A  special  meander  corner  is  one 
established  on  a  legal  subdivisional  line,  not  a  standard,  town- 
ship, or  section  line.21  After  the  relative  position  of  these 
points  have  been  thus  fixed  the  surveyor  will  meander  the  body 
of  water,  commencing  at  one  point  and  noting  the  intersection 
of  the  meander  line  with  the  other  point  or  points.22 

§  204.  Location  of  island  in  lake  or  river. — Islands  in  lakes 
or  rivers,  which  have  been  meandered,  should  be  surveyed.  To 
do  this  such  island  must  be  located  with  reference  to  the  survey 
lines  of  the  land  adjacent  to  the  body  of  water.  The  position 
of  the  island  is  fixed  by  triangulation  from  a  specially  prepared 
base  line  on  the  shore  of  the  lake  and  initiated  upon  the  lines 
already  surveyed,  on  the  main  land.  The  meander  corner  on 
the  main  land  will  be  connected  by  course  and  distance  on  a 
direct  line  with  the  corresponding  point  on  the  island.  A 
meander  corner  will  be  established  at  this  point  on  the  island.23 
This  corner  is  termed  an  auxiliary  meander  corner.  The 
meander  of  the  island  is  initiated  at  this  point.24 

§  205.  Meander  corners  not  to  be  exposed  to  waves  and 
ice. — Temporary  meander  corners  may  be  located  at  the  inter- 
section of  the  surveyed  line  with  high-water  mark,  or  in  case 
of  tide-waters,  at  the  intersection  of  the  line  with  mean  high- 
tide.  Still  the  surveyor  should  not  place  a  meander  corner  in  a 

21Manual   (1902)   §  166.  "Manual   (1902)   §  169. 

"Manual  (1902)   §   167.  2*Manual   (1902)   §  170. 


187  MEANDER  CORNERS  AND  MEANDER  LINES  §    2O7 

position  exposed  to  the  beating  of  the  waves  and  to  the  action 
of  ice  in  severe  weather.  In  all  such  cases  a  witness  corner 
should  be  established  on  the  line  at  a  secure  point  near  the  point 
for  meander  corner.  The  distance  and  all  particulars  with 
reference  to  the  meander  corner  and  the  witness  corners  must 
be  noted.  From  this  witness  corner  the  meander  corner  posi- 
tion can  thereafter  be  found.25 

§  206.  Lands  unsurveyable. — Meander  corners  should  not 
be  set  at  intersection  of  survey  lines  with  deep  precipices,  can- 
yons, or  lands  otherwise  unsurveyable.  Neither  should  the 
surveyor  meander  the  line  separating  the  land  that  can  be 
traversed  from  that  which  can  not  be  surveyed.  In  place  of 
meander  corners  he  will  set  witness  corners,  on  line  near  the 
intersection  of  section  lines  with  the  impassable  tract  or  im- 
practicable marsh.  These  witness  corners  will  represent  inac- 
cessable  regular  section  or  quarter-section  corners,  if  within 
twenty  chains.  Such  quarter-sections  so  marked  shall  be  platted 
as  surveyed.26  Meander  lines  should  not  be  established  at  the 
border  line  between  dry  and  swamp  or  overflowed  land,  but 
should  be  run  at  ordinary  high-water  mark  of  the  actual  margin 
of  the  stream  or  body  of  water.27  The  field-notes  of  meanders 
should  show  the  date  on  which  the  work  was  done.  Such  notes 
should  describe  the  corners  from  which  the  meander  line  was 
initiated,  and  also  upon  which  it  closed.  Natural  features 
should  be  set  out  in  the  notes.28 

§  207.  Mistake  or  fraud  in  running  meander  line. — Occa- 
sionally the  courts  are  required  to  deal  with  questions  in  which 
fraud  or  mistake  in  running  a  meander  line  is  the  deciding 
factor.  As  to  whether  or  not  an  owner  has  riparian  rights 
may  depend  on  whether  or  not  there  was  fraud  or  a  mistake 
in  running  the  meander  line.  If  there  was  fraud  or  a  mistake 
in  running  that  line  it  will  be  generally  held  to  vitiate  the 

25Manual  (1902)    §  171.  "Manual   (1902)   §  168. 

26Manual  (1902)   §§  108-151.  28Manual   (1902)   §  172. 


§    2O7  SURVEYING  AND  BOUNDARIES  l88 

meander  line,  and,  in  that  event,  the  courts  are  inclined  to 
regard  the  so-called  meander  line  as  a  boundary  line  and  not 
a  meander  line.  The  case  of  Lally  v.  Rossman,29  by  the  Wis- 
consin court,  as  well  as  several  other  cases  in  that  State,  de- 
serve special  mention.  At  first  glance,  it  may  seem  that  they 
lay  down  a  different  rule  with  reference  to  meanders  but,  on 
close  examination,  and  reading  of  the  cases,  it  will  be  found 
that  such  court  adheres  to  the  proposition  that  meander  lines 
are  not  boundary  lines  but  are  run  to  secure  data  for  tracing 
the  stream  or  body  of  water  and  for  computation  of  the  area. 
The  point  before  the  court  in  that  case  was  as  to  the  boundary 
line  of  a  lot  shown  on  the  government  plan  where  it  was  evi- 
dent the  government  surveyors  either  did  not  run  the  meander 
lines  and  fraudulently  represented  them  on  the  plan,  as  having 
been  run,  or  made  an  error,  and  that  the  river  never  did  run 
where  it  was  represented  to  run.  In  fact,  the  banks  of  the 
river  were,  in  many  places,  a  half  mile  from  the  places  where 
they  were  represented  to  be  on  the  plat.  Fig.  37.  The  dis- 
pute was  as  to  lot  5,  Sec.  30,  township  42,  range  3  east.  The 
irregular  line  ABC  represents  the  river  as  shown  on  the  gov- 
ernment plan.  The  irregular  line  A  P  C  represents  the  river 
as  it  actually  existed  at  the  time  of  the  government  survey  and 
also  at  the  time  of  the  action.  The  land  between  the  two  lines 
is  high  and  is  covered  with  heavy  timber.  The  line  E  F  G 
represents  the  shore  of  a  lake  as  shown  by  the  government 
plan,  and  the  line  E  H  I  represents  the  shore  of  the  lake  as 
it  was  at  the  time  of  the  survey  and  also  as  it  now  is.  Evi- 
dently the  government  surveyor  never  meandered,  either  the 
river  or  the  lake,  but  guessed  at  the  line  of  the  shores  of  those 
waters  as  they  meandered  through  the  section.  The  fact  that 
they  are  correctly  located  at  points  A  and  C  bears  out  this 
theory.  It  was  held  that  lot  5  would  extend  south  to  the  1/8 

2»Lally  v.  Rossman,  82  Wis.  147, 
51  N.  W.  1132. 


1 89 


MEANDER  CORNERS  AND  MEANDER  LINES 


§    207 


line  J-K  except  it  must  stop  where  the  river  crosses  that  line 
at  L  M  N.  The  plaintiff  claimed  title  to  lot  5  and  that  such  lot 
extended  south  to  the  river  as  it  actually  runs  as  at  O-L  D, 
thus  claiming  a  considerable  tract  of  land  north  of  the  river 
on  what  would  be  the  S.  W.  1/4  of  the  S.  E.  1/4.  The  de- 


J  —  —  —  — 


Fiq.37 


fendant  claimed  that  the  said  lot  could  not  extend  south  of  the 
river  "as  shown  on  the  government  plat."30  In  its  opinion  the 
court  says:  "The  Whitney  case  is  decisive  of  this  case,  and 
leaves  little  to  be  said.  In  that  case  it  was  held  that,  where  a 

30Whitney  v.  Detroit  Lumber  Co., 
78  Wis.  240,  47  N.  W.  425. 


§    2O7  SURVEYING  AND  BOUNDARIES  IQO 

lake  was  named  as  a  boundary,  and  no  lake  in  fact  existed, 
the  boundary  must  be  the  next  eighth  line."  There  has  been 
some  criticism  of  this  rule  and  the  courts  of  Minnesota  lay 
down  a  different  rule  apparently.31  However,  the  Minnesota 
court,  in  case  of  Security  L.  &  E.  Co.  v.  Burns,32  had  under 
consideration  a  similar  question.  Fig.  67.33  In  that  case  there 
was  a  fraudulent  government  survey,  the  plat  and  survey  hav- 
ing been  duly  approved  by  the  government  authorities  and 
filed.  The  court  held  that  the  meander  line,  so  called,  was 
the  boundary  and  that  the  government  could  resurvey  and 
resell  the  land  between  the  lake  and  the  so-called  meander  line 
consisting  of  several  hundred  acres.  So  it  is,  in  a  large 
measure,  what  to  do  under  the  particular  circumstances  before 
the  court.  The  court  can  not  follow  blindly  a  prescribed  rule 
laid  down  by  another  court  under  different  circumstances  but 
must  exercise  a  high  degree  of  common  sense  and  originality 
in  arriving  at  its  decision  under  the  peculiar  circumstances  of 
the  case.34 

The  case  of  Whitney  v.  Detroit  Lumber  Co.,35  cited  in  Lally 
v.  Rossman,  is  along  the  same  line  as  the  Lally  case.  In  that 
case,  according  to  government  survey  and  plat,  fractional  lot 
3  of  Sec.  9-39-15  east  of  4th  contained  twenty-six  acres.  Fig. 
38.  It  was  situated  in  the  northern  part  of  the  N.  E.  1/4  of 
N.  W.  1/4  of  the  section.  The  plat  showed  the  remainder  of 
the  east  1/2  of  N.  W.  1/4  of  the  section  to  be  in  a  lake,  the 
meander  of  which  was  the  southern  boundary  of  the  frac- 
tional lot.  As  a  matter  of  fact  there  was  no  lake  in  the  east 
half  of  the  northwest-quarter  of  the  section.  Held ;  that  the 

siHanson  v.  Rice,  88  Minn.  273,  33Post  ch.  XIV. 

92  N.  W.  982.  34Post  ch.  XIV. 

32Security    Land    &    Exploration  35Whitney  v.  Detroit  Lumber  Co. 

Co.  v.  Burns,  87  Minn.  97,  91  N.  W.  78  Wis  240,  47  N.  W.  425. 
304,  63  L.  R.  A.   157,  94  Am.  St. 
684. 


191 


MEANDER  CORNERS  AND  MEANDER  LINES  §    2O7 


patent  carried  title  only  to  the  north  forty  acres  of  the  E.  1/2 
of  the  N.  W.  1/4. 

While  there  is  no  diagram  of  the  section  in  the  reported 
case,  by  a  careful  reading  of  the  statement  of  facts  we  have 
drawn  a  diagram  of  a  section  of  land  which  seems  to  be  war- 
ranted by  the  facts.  At  any  rate  it  will  illustrate  the  point 
under  discussion.  Fig.  38.  The  irregular  line,  A  B  C  D, 
represents  the  meander  line  of  the  lake  as  shown  on  the  plat. 


§    2O8  SURVEYING  AND  BOUNDARIES  192 

The  irregular  line,  G  H  I,  represents  the  actual  shore  of  the 
lake  as  it  existed  at  the  time  of  the  government  survey  and  as 
it  now  is.  The  line,  B  E  F,  represents  Pine  River  as  it  is. 
The  line  J  K  represents  the  1/8  line.  It  was  held  that  lot  3 
could  extend  only  to  this  1/8  line.  This  is  a  case  in  which  tht 
so-called  lake  never  did  cover  the  land,  as  represented,  beyond 
the  line  G  H  C  I.  Between  the  line  of  the  lake  and  the  meander 
line,  as  shown  on  the  plat,  is  high  land  covered  with  heavy 
timber.  Prior  to  1885,  tne  plaintiff  became  the  owner  of  lots 
3,  4,  5  and  8,  and  was  such  owner  at  the  time  of  the  trial.  The 
alleged  trespass  was  committed  on  the  S.  E.  1/4  of  the  N.  W. 
1/4  by  the  defendant.  The  defendant  claimed  that  the  said 
tract  belonged  to  one  Long  from  whom  it  had  a  license  to  cut 
timber  on  said  lands.  It  was  held  that  plaintiff  had  failed  to 
establish  title  to  any  part  of  the  S.  E.  1/4  of  the  N.  W.  1/4 
and  that  lot  3  was  limited  to  the  1/8  line  as  its  southern  boun- 
dary. This  rule  is  well  established  in  Wisconsin.  The  author 
believes  it  has  good  reasons  for  its  existence  and  should  not  be 
condemned  without  a  careful  consideration  of  the  whole  ques- 
tion. Still  it  is  not  in  harmony  with  the  general  rule.36 

§  208.  Meander  line  bounding  marsh. — In  1834,  land  lying 
south  of  Lake  Erie  was  surveyed  by  a  United  States  surveyor. 
The  meander  line  was  run  along  a  boggy,  wet  marsh,  lying 
south  of  and  adjoining  the  lake.  On  the  plat  made  by  the 
government  from  the  notes  of  this  survey  the  land  between 
the  meander  line  and  the  lake  was  designated  as  "flat  marsh" 
or  "impassable  marsh  and  water."  This  meander  line  was  a 
considerable  distance  from  the  lake  proper.  A  part  of  the  land 
bounded  on  the  north  by  the  meander  line  was  patented  by  the 
government  to  one  B,  in  1844.  B  paid  only  for  acreage  de- 
termined by  the  meander  line.  The  patent  recites  the  number 
of  acres  and  that  tract  is  a  fractional  section  "according  to  the 

"Post  ch.  XIV. 


193  MEANDER  CORNERS  AND  MEANDER  LINES  §    2OQ 

official  plat  of  the  survey  of  said  lands  returned  to  the  general 
land  office  by  the  surveyor-general,  etc."  In  1881,  the  land 
office  instructed  its  surveyor  to  survey  said  marsh,  lying  be- 
tween the  meander  line  and  the  lake  proper.  Such  marsh  was 
accordingly  surveyed  and  platted  and  due  return  made  to  the 
land  office.  Thereafter  the  government  patented  the  land  so 
surveyed  to  C.  Held  in  that  case  that  the  original  meander 
line  run  in  1835,  was  a  boundary  line,  and  B  will  be  limited 
to  that  boundary  line,  and  the  marsh  lying  between  the  original 
meander  line  and  the  lake  proper  was  excluded  from  his 
patent;  that  C  would  hold  such  marsh  under  the  later  survey 
and  patent  issued  thereunder.37  And  one  receiving  a  patent 
will  not  ordinarily  be  heard  to  insist  that  by  reason  of  an 
error  on  the  part  of  a  surveyor  more  land  was  bought  than 
paid  for.  This  land  held  not  to  be  continuously  submerged.88 
Necessarily  the  court  had  to  determine  that  the  marsh  had 
never  been  conveyed  by  the  government  until  so  conveyed  to  C. 
§  209.  Bayou  a  boundary  line. — It  sometimes  happens  that 
the  government  surveyors  ran  the  meander  line  along  a  bayou 
situated  some  distance  from  the  main  river  and  did  not  mean- 
der the  main  shore  of  the  river.  This  action  of  the  surveyors 
will  naturally  raise  a  question  as  to  whether  or  not  the  person 
buying  land  along  the  bayou  could  properly  claim  to  the  main 
river  as  a  riparian  proprietor.  In  deciding  such  cases  the  court 
and  the  surveyor  should  consider  all  of  the  surrounding  cir- 
cumstances. If  considerable  land  lies  between  the  bayou  and 
the  main  river  it  would  be  an  indication  that  the  government 
did  not  intend  to  give  up  all  of  its  rights  to  such  land  by  con- 
veying the  shore  adjacent  to  the  bayou.  This  proposition  has 
been  before  the  United  States  courts  for  decision.39  In  the 
case  cited  the  plaintiff  was  the  owner  of  a  lot  patented  by  the 

37Niles  v.  Cedar  Point  Club,  175  U.  S.  300,  44  L.  ed.  171,  20  Sup.  Ct 

U.  S.  300,  44  L.  ed.  171,  20  Sup.  Ct.  124. 

124.  39Horne  v.  Smith,  159  U.  S.  40, 

v.  Cedar  Point  Club,  175  40  L.  ed.  68,  15  Sup.  Ct.  988. 


§   2O9  SURVEYING  AND  BOUNDARIES  194 

government.  He  paid  for  the  number  of  acres  as  determined 
by  a  certain  meander  line.  This  meander  line  was  run  along 
a  bayou,  which  emptied  into  the  main  river  but,  at  the  point 
in  question,  was  some  distance  therefrom.  It  was  held  that 
the  plaintiffs  land  was  limited  by  the  bayou.  The  court  says : 
"In  this  case  United  States  surveyors  obviously  surveyed 
plaintiff's  lot  only  to  a  bayou  and  ran  the  meander  line  along 
said  bayou,  leaving  the  river  unsurveyed.  The  plaintiff  has 
no  right  to  challenge  the  correctness  of  this  action,  or  to  claim 
that  the  bayou  was  not  the  Indian  river  or  a  proper  water-line 
on  which  to  bound  the  lots.  The  river  mentioned  was  some 
mile  and  a  quarter  beyond  the  bayou  or  meander  line  run. 
The  amount  of  land  patented  was  about  one  hundred  and  sev- 
enty acres  and  was  situated  in  sections  23  and  26.  It  would 
not  be  presumed  that  the  government  intended  to  convey  over 
seven  hundred  acres  and  situated  in  part  in  sections  22  and  27 
also."  In  this  case  the  length  of  the  section  line  between  sec- 
tions 23  and  26,  as  given  on  the  plat,  was  30.55  chains,  but 
the  actual  distance  to  the  river  was  about  120  chains.  The 
patent  to  the  lot  of  plaintiff  closed  by  using  this  language  in 
the  description,  "containing  one  hundred  seventy  and  forty- 
two  hundredths  acres,  according  to  the  official  plat."  It  was 
held  that  this  did  not  transfer  the  land  between  the  bayou  and 
the  river.  The  surrounding  circumstances  moved  the  court 
in  that  case  to  hold  that  it  was  not  the  intention  of  the  gov- 
ernment to  convey  all  of  the  land  between  the  bayou  and  river. 
The  court  did  not  find  there  was  any  fraud  or  mistake  in  run- 
ning the  meander  line  but  stated  that  evidently  the  surveyors, 
for  reasons  of  their  own,  did  not  deem  it  feasible  at  the  time 
to  survey  the  land  between  the  bayou  and  the  river.  The  court 
cites  several  authorities,  some  of  which  we  have  already  con- 
sidered.40 Metes  and  bounds  in  a  description  control  dis- 

40Glenn  v.  Jeffrey,  75  Iowa  20,    425;    Lally    v.    Rossman,   82   Wis. 
39  N.  W.  160;  Whitney  v.  Detroit    147,  51  N.  W.  1132. 
Lumber  Co.,  78  Wis.  240,  47  N.  W. 


195  MEANDER  CORNERS  AND  MEANDER  LINES  §    2IO 

tances.41  A  meander  line  is  not  a  boundary  line  generally.42 
A  similar  question  was  before  the  court  in  an  Iowa  case  in 
which  the  facts  were  that  a  certain  lot  was  surveyed  and  platted 
and  located  on  the  north  side  of  a  certain  water,  supposed  to  be 
the  Missouri  river.  The  government  plat  and  field-notes 
described  the  meander  line  as  being  at  said  river,  but  the  water 
was  in  fact  a  bayou  some  distance  from  the  river,  and  between 
it  and  the  river  was  land  which  in  fact  was  never  surveyed. 
Held;  that  the  patent  for  the  lot  did  not  convey  the  land  be- 
tween the  bayou  and  the  river.43  The  Iowa  court  held  that  the 
land  between  the  bayou  and  river  had  never  been  surveyed.  A 
similar  question  was  before  the  Nebraska  court  with  like  ef- 
fect.44 

§210.  Variation  between  plat  and  field-notes. — Where  the 
evidence  shows  a  variation  between  the  plat  and  field-notes 
it  is  important  to  know  to  which  data  the  courts  give  the 
preference.  This  question  has  been  before  the  court  in  a 
number  of  carefully  considered  cases  and  it  is  quite  generally 
held  that  the  plat  must  control.  In  an  Indiana  case  it  was  so 
held.45  Thus  it  would  seem  that  the  plat  is  held  to  be  a  higher 
degree  of  proof  than  the  notes.  Doubtless  there  are  other 
cases,  where  from  the  surrounding  circumstances,  the  court 
would  be  constrained  to  hold  differently.  It  is  largely  a  ques- 
tion of  what  to  do  under  the  particular  circumstances.  All  of 
the  facts  should  be  carefully  considered  in  a  given  case.  Cer- 
tainly a  map  and  survey  made  after  the  deed  had  been  lost,  by 
a  surveyor  who  acted  only  upon  information  therein  contained, 
would  not  be  admissible  as  evidence  to  prove  the  boundary.48 

41Morrow  v.  Whitney,  95  U.  S.  44Lammers  v.  Nissen,  4  Nebr. 

551,  24  L.  ed.  456.  245. 

42Hardin  v.  Jordan,  140  U.  S.  371,  45Beaty  v.  Robertson,  130  Ind. 

35  L.  ed.  433,  n  Sup.  Ct.  808.  589,  3O  N.  E.  706. 

43Glenn  v.  Jeffrey,  75  Iowa  20,  46Cartright  v.  Cartright,  70  W. 

39  N.  W.  1 60.  Va.  507,  74  S.  E.  655,  Ann.  Cas.  1914 

A,  578. 


CHAPTER  XII 

MARKING  LINES  AND  CORNERS 

Sec.  Sec. 

211.  Generally.  221.    Corners     common     to     four 

212.  Blazing  trees.  townships. 

213.  Lines,  how  marked.  222.     Corners  common  to  two  town- 

214.  Blazing  random  lines  unlaw-  ships. 

ful.  223.     Standard   section   corners. 

215.  Impassable  objects  on  line         224.     Closing  section  corners. 

— Witness  points.  225.     Corners  common  to  four  sec- 

216.  Establishing     and'      marking  tions. 

corners.  226.     Section    corners    common    to 

217.  Monuments    consist    of    cor-  two  sections  only. 

ners  and  accessories.  227.  Section   corners    referring   to 

218.  Pits  and  mounds.  one  section  only. 

219.  Standard  township  corners.  228.  Quarter-section  corners. 

220.  Closing  township   corners.  229.  Meander  corners. 

§  211.  Generally. — Fixed  monuments  are  of  paramount 
importance  in  all  surveys.  They  control  courses  and  distances 
is  we  have  seen.  They  furnish  undisputed  evidence  of  the 
location  of  lines  and  corners  and  must  not  be  disregarded. 
They  are  the  sources  of  the  surveyor's  confidence  in  the  ac- 
curacy of  his  work.  Whether  the  survey  be  an  original  one. 
the  relocation  of  lines  and  corners  long  obliterated,  or  the 
planting  of  subdivisional  corners  of  a  section  the  surveyor 
should  establish  permanent  monuments  at  all  corners  with 
great  care.  These  permanent  monuments  should  consist  of 
steel,  copper,  or  stone  firmly  set  in  the  soil.  Take  the  time 
and  do  not  neglect  this  important  matter.  If  timber  be  near 
at  hand,  at  least  two  bearings  should  be  taken  to  each  corner. 
These  should  be  properly  marked  and  noted  in  the  minutes. 

196 


197  MARKING  LINES  AND  CORNERS  §    213 

Permanent  records  should  be  made.     Otherwise  there  is  no 
guarantee  of  satisfactory  work  in  the  future. 

§  212.  Blazing  trees. — When  the  author  gave  a  title  to  this 
chapter  it  was  not  so  much  with  the  thought  of  urging  upon 
surveyors  the  planting  of  permanent  monuments  at  all  cor- 
ners, as  briefly  touching  upon  the  instructions  of  the  commis- 
sioner of  the  general  land  office  to  the  surveyor-general  and 
his  deputies,  on  the  manner  of  marking  lines  and  corners. 
Retracing  surveyors  should  become  familiar  with  these  instruc- 
tions. The  Act  of  1796,  which  is  still  in  force,  required  the 
marking  of  lines  as  well  as  corners.  In  a  wooded  country, 
this  is  of  great  importance  and  will  be  helpful  to  local  sur- 
veyors and  owners  in  locating  the  true  line.  Blazes  are  per- 
mitted only  along  permanent  lines;  never  along  random  or 
temporary  lines.  We  will  briefly  review  the  instructions  sent 
out  by  the  commissioner  of  the  land  office  relative  to  these 
matters  in  this  chapter. 

§  213.  Lines,  how  marked. — Lines  on  which  are  to  be  es- 
tablished legal  corners,  boundaries  will  be  marked  by  blazing 
trees  on  or  near  the  line.  All  trees  intersected  by  the  line  will 
have  two  chops  or  notches  cut  on  the  sides  facing:  the  line.  No 
other  marks  permitted.  These  are  called  "sight-trees,"  or 
"line-trees."  A  number  of  other  trees  standing  within  fifty 
links  of  the  line,  on  either  side  of  it,  should  also  be  blazed  on 
two  sides.  These  blazes  are  made  diagonally  or  quartering 
toward  the  line  and  thus  make  the  line  conspicuous  and  easily 
traceable.  These  blazes  will  be  made  opposite  each  other  and 
should  correspond  with  the  direction  of  the  line  where  the 
trees  stand  near  it,  and  approach  near  to  each  other  toward 
the  line,  the  farther  the  line  passes  from  the  blazed  tree.  Thus, 
by  observing  the  position  of  the  two  chops  the  surveyor  can 
locate  the  general  direction  and  position  of  the  line.  In  early 
surveys,  an  opposite  practice  prevailed.  This,  the  local  sur- 


§214  SURVEYING   AND   BOUNDARIES  198 

veyor  should  bear  in  mind.1  The  line  should  be  so  well  marked 
as  to  be  easily  followed.  The  blazes  should  be  cut  deep  enough 
to  leave  reasonably  well  formed  scars.  The  surveyor  should 
cut  through  the  bark  and  into  the  wood.  Trees  two  inches  or 
more  in  diameter  along  the  line  should  be  so  blazed.  Full 
notes  should  be  made  of  all  blazed  trees,  giving  diameter,  kind 
of  tree,  direction  from  line,  and  approximate  distance  from 
line.2  Sufficient  undergrowth  to  enable  the  surveyor  to  cor- 
rectly operate  his  instruments  along  the  line  will  be  cut.  In 
the  event  the  line  crosses  deep  wooded  valleys  and  is  run  by 
sighting  over  tops  of  trees,  the  usual  blazing  of  trees  in  the 
low  ground,  where  accessible,  will  be  performed.3 

§  214.  Blazing  random  lines  unlawful. — "The  practice  of 
blazing  random  lines,"  say  the  instructions,  "to  a  point  some 
distance  away  from  an  objective  corner,  and  leaving  through 
timber  a  marked  line  which  is  not  the  true  boundary,  is  unlaw- 
ful, and  no  such  surveys  are  acceptable.  The  decisions  of  some 
state  courts  make  the  marked  trees  valid  evidence  of  the  place 
of  the  legal  boundary,  even  if  such  line  is  crooked,  and  has 
the  quarter-section  corner  far  off  the  blazed  line."4  It  will 
be  readily  seen  to  allow  randoms  to  be  blazed  would  be  a 
source  of  trouble  and  confusion.  Hence,  on  random  line 
trees  will  not  be  blazed  unless  absolutely  necessary,  and  then 
guardedly  so  as  to  prevent  confusion  in  lines.  And  still 
bushes  may  be  cut  away  and  limbs  lopped  off  and  stakes  set 
on  the  trial  line  every  10  chains  to  enable  the  surveyor  to 
return  and  correct  and  off  set  to  the  true  line.  After  the  true 
line  has  been  established  the  surveyor  will  remove  all  stakes 
on  the  random  line.5 

Manual    (1902)    42.  4Manual    (1902)   45. 

2Manual    (1902)   43.  5Manual  (1902)  46. 

3Manual   (1902)  44, 


199 


MARKING  LINES  AND  CORNERS 


§    215 


§  215.  Impassable  objects  on  line — Witness  points. — 
Where  the  survey  of  a  line  is  obstructed  by  an  impassable  object, 
such  as  a  pond,  swamp,  or  marsh,  (not  meandered),  the  line 
will  be  prolonged  across  such  obstruction  by  right-angling  or 
some  other  trigonometrical  operation  to  locate  the  line  across 
the  obstruction.  In  the  event  the  line  is  recovered  some  dis- 
tance beyond  the  margin  of  the  obstruction,  it  will  be  surveyed 
back  to  such  margin  and  trees  blazed  thereon.  A  witness- 
point  will  be  established  to  mark  such  margin,  except  when 
such  point  is  less  than  20  chains  from  a  legal  corner,  and  in 
that  event  a  witness-corner  will  be  established  at  the  inter- 
section. All  of  the  particulars  will  be  carefully  entered  in  the 
field-notes.6  Fig.  39.  "In  case  where  all  the  points  of  inter- 


6Manual   (1902)  49-50. 


Fiq.3§ 


§  215 


SURVEYING  AND  BOUNDARIES 


2OO 


section  with  the  obstacle  to  measurement,"  continue  the  in- 
structions, "fall  more  than  20  chains  from  the  proper  place 


12.90 


Fiq.40 


2OI  MARKING  LINES  AND  CORNERS  §    217 

for  a  legal  corner  in  the  obstruction,  and  a  witness-corner 
can  be  placed  on  the  off  set  line  within  20  chains  of  the  inac- 
cessible corner  point,  such  witness-corner  will  be  established.7 
Fig.  40. 

§  216.  Establishing  and  marking  corners. — The  govern- 
ment surveyor  is  required  to  carefully  mark  all  corners,  in  a 
manner  to  assure  permanency,  to  the  end  that  future  surveys 
may  be  made  with  certainty.  If  corners  are  not  so  marked 
the  survey  will  have  been  largely  in  vain.  What  is  here  said 
with  regard  to  the  duties  of  government  surveyors  in  marking 
corners  and  lines  may  well  be  applied  to  local  surveyors.  It 
is  not  enough  to  do  the  work  of  running  lines  and  fixing 
corners.  There  should  be  permanent  monuments  set  and  full 
notes  taken  with  reference  thereto. 

"All  marking  of  letters  and  figures  should  be  done  neatly, 
distinctly,  and  durably,"  say  the  instructions,  "using  the  tools 
best  adapted  to  the  purpose,  and  keeping  them  in  good  order. 
These  tools  are  the  chissel  and  hammer  for  marking  stones, 
and  the  scribing  tool  or  gouge  for  surfaces  of  wood."  The 
greatest  permanency  requires  stone  or  iron  corner  monuments. 
The  perishable  nature  of  wood  prohibits  its  use  at  this  time 
unless  absolutely  necessary.  The  deputy  should  be  provided 
with  good  tools  so  that  the  work  may  be  accurately  and 
quickly  done.  Arabic  figures  should  be  used  for  all  numbers.8 

§  217.  Monuments  consist  of  corners  and  accessories. — 
The  corner  should  be  firmly  established.  It  should  consist  of 
an  iron  rod,  pipe,  or  better  still  a  copper  rod,  a  marked  stone, 
a  cross  cut  on  a  ledge.  Where  these  can  not  be  had  a  post  of 
durable  timber  may  be  used.  If  it  be  necessary  to  set  up  a 
stone  monument  on  a  ledge  the  instructions  require  that  it  be 
supported  in  a  well  built  stone  mound,  marks  plainly  shown. 
A  witness-mound  will  be  built  separately.9 

7Manual  (1902)  51.  9Manual   (1902)   54. 

8Manual      (1902)      55;     Manual 
255. 


§217  SURVEYING  AND  BOUNDARIES  2O2 

Under  the  instructions  the  accessories  in  the  order  of  their 
desirability  are:  bearing  objects,  such  as  cliffs,  rocks,  or 
boulders  marked  with  a  cross,  the  letters  "B.  O."  and  section 
number;  memorials,  such  as  glass,  stone-ware,  marked  stones, 
cast  iron,  charcoal,  or  charred  stakes  buried  twelve  or  twenty- 
four  inches  under  the  surface  at  the  corners;  pits  of  proper 
size  and  arrangement ;  mounds  of  stone  at  proper  position  from 
corner ;  bearing  trees  blazed  and  marked  as  required ;  stake  in 
pit,  with  letters  and  figures;  mound  of  earth,  which  is  the 
least  durable,  may  be  considered.10  It  is  necessary  that  these 
monuments  be  properly  lettered  where  that  may  be  done. 
Buried  charcoal  or  stone  pottery  is  very  durable  and  effective. 
The  fact  of  such  burial  together  with  the  depth  should  always 
be  noted  in  the  minutes. 

§  218.  Pits  and  mounds. — "When  pits  and  mounds  of  earth 
are  made  accessories  to  corners,"  say  the  instructions,  "the  pits 
will  always  have  a  rectangular  plan;  while  the  mounds  will 
have  a  conical  form,  with  circular  base ;  and  in  all  cases  both 
pits  and  mounds  will  have  dimensions  at  least  as  great  as  those 
specified  in  the  descriptions."  No  departure  by  the  surveyor 
will  be  permitted.11  It  will  be  seen  that  neither  mounds  nor 
pits  are  of  any  permanency  as  markers  unless  the  surface  of  the 
ground  remains  practically  undisturbed.  In  the  latter  case 
they  mark  the  place  where  the  corner  may  be  found  with  rea- 
sonable certainty.  Corners  in  later  surveys  are  marked  much 
more  permanently  than  formerly.  Marked  steel  rods  at  all 
section,  township,  range  and  quarter-section  corners  make  a 
very  desirable  marker. 

§  219.  Standard  township  corners. — All  corners  should  be 
so  marked  that  the  surveyor  may  identify  the  particular  corner 
and  know  that  certain  sections  are  identified  thereby.  De- 
tailed descriptions  of  the  manner  of  marking  standard  town- 

10Manual  (1902)  55.  ^Manual   (1902)   57. 


203 


MARKING  LINES  AND  CORNERS 


§    219 


ship  corners  under  any  and  all  circumstances  are  given  in  the 
instructions.12     It  has  been  the  practice  in  a  prairie  country, 


D       1         ° 

\ 

+'                               I 

_—^ 

^                      A1 

1      D° 

K          1             ro 
2V 

Stnd              5           Porl 

Ficj41 


where  no  trees  are  found  in  the  vicinity  of  the  corner,  for  the 
surveyor  to  mark  such  corners  with  stones,  mounds  of  earth 


12Manual     (1902)     64;     Manual 
255. 


§    2I9 


SURVEYING  AND  BOUNDARIES 


2O4 


or  pits  where  practical.  The  size  and  location  of  the  pits  and 
mounds  and  the  size  of  the  stone  are  fully  set  out  in  the  field- 
notes.  Where  a  pit  and  mound  of  earth  are  impractical  the 
corner  may  be  marked  by  a  stone,  with  mound  of  stones  for 
support,  or,  in  lieu  of  a  stone,  a  post  may  be  planted  at  the 
corner.  Where  trees  can  be  found  they  should  be  marked  to 
indicate  the  position  of  the  corner.  Figs.  41  and  42. 


V 

e 

1 

V 

JO" 

<M 


p 

_  ^  

; 

8 

s*n"a                  ^ 

V                 5ft    Base 

2'  6 


Mounds  of  earth  with  deposit  of  charcoal,  glass,  crockery, 
or  similar  material  may  be  used  to  witness  the  corner.  Should 
a  tree  be  found  at  the  corner  it  should  be  blazed  and  marked 
and  its  position  may  be  indicated  by  pits  and  mounds  of  earth 
or  by  bearing  trees.  The  particular  corner  should  be  so  marked 
as  to  indicate  it  is  a  standard  corner,  thus  "S  C." 


2OS 


MARKING  LINES  AND  CORNERS 


§    220 


§  220.  Closing  township  corners. — Closing  township  cor- 
ners on  base  lines  or  standard  parallels  are  required  to  be  con- 
nected, by  course  and  distance,  with  the  nearest  standard  cor- 
ner thereon.  Likewise  closing  corners  on  all  other  lines,  are 
required  to  be  connected,  in  a  similar  manner,  with  the  near- 
est township,  section,  or  quarter-section  corner,  or  mile,  or 
half-mile  monument,  as  conditions  may  require  in  the  particu- 
lar case.13  These  corners  are  marked  in  a  similar  manner, 
except  the  inscriptions  are  placed  so  as  to  indicate  the  corner 
to  be  a  closing  corner,  thus,  "C  C."1*  "When  two  closing 
lines,  at  right  angles  to  each  other,"  it  is  said,  "intersect  an 
irregular  boundary  at  points  less  than  8  feet  apart  and  stone 
or  post  corners  are  established/'  the  ordinary  pits  will  be 
omitted,  and  the  pits  on  the  closing  lines  will  have  their  di- 


Fiq.43 


"Manual  (1902)  66. 


14Manual   (1902)  65. 


§    220 


SURVEYING  AND  BOUNDARIES 


2O6 


l-*vb 

4'              5                    t' 

Txi             0 

1                 CT> 

? 

i\ 

1          co 

2<T 

^r~ 

r>^ 

2.4" 

Fiq44 


mensions  increased  to  36x36x12  inches.15  Figs.  43  and  44. 
The  precautions  herein  outlined  were  not  always  observed  in 
many  of  the  early  surveys;  in  fact  they  were  not  made  a 
part  of  the  instructions  in  the  early  day.  This  omission  became 
the  source  of  much  confusion  in  the  relocation  of  corners  on 
standard  parallels  and  base  lines. 

§  221.  Corners  common  to  four  townships. — These  corners 
are  permanently  marked  like  standard  township  corners, 
except  the  lettering  on  the  post  indicates  that  the  corner  is  one 


"Manual  (1902)  69. 


207 


MARKING  LINES  AND  CORNERS 


§    221 


common  to  four  townships,  and  the  townships  are  designated 
by  the  proper  letters  on  the  side  of  the  post  facing  a  given 
township.  Such  post  should  be  set  diagonally  so  that  each 


§    222 


SURVEYING  AND  BOUNDARIES 


208 


side  faces  a  particular  township.16  Thus  the  given  township 
can  at  all  times  be  identified  by  an  examination  of  the  mark- 
ings facing  a  township.  Figs.  45  and  46. 


46 


§  222.  Corner  common  to  two  townships.— The  pits, 
mounds,  stones,  posts,  etc.,  which  indicate  the  position  of  these 
corners  are  placed  similarly  to  other  corners  on  township  lines, 
except  that  they  are  so  arranged  and  marked  as  to  indicate  the 
two  townships.  By  referring  to  the  letters  and  the  positions 

"Manual    (1902)   71. 


209 


MARKING  LINES  AND  CORNERS 


§    223 


of  the  pits  and  mounds  of  earth  or  bearing  trees,  the  particu- 
lar township  intended  to  be  designated  can  be  ascertained  and 
identified.17  Figs.  47  and  48. 


>.  — 

Ranqe 

___^ 
,    Line 

-o 

1            0 

4                               V 

0 
--V2 

Fiq47 


§  223.  Standard  section  corners. — Standard  section  corners 
are  marked  similarly  but  so  as  to  indicate  the  particular  sec- 
tion. For  instance,  if  it  be  desired  to  mark  the  corner  to  sec- 
tions 31  and  32  of  a  designated  township  it  could  be  done  in 


17Manual  (1902)  72. 


§   223 


SURVEYING  AND  BOUNDARIES 


2IO 


Rq.48 


one  of  eight  ways  but,  whichever  method  is  used,  should  in- 
dicate the  position  of  the  corner  and  the  sections  of  which  the 
corner  was  a  corner  in  common.  If  marked  with  stone,  pits 
and  mound  of  earth,  the  markings  and  positions  would  be  as 

follows :     "Set  a stone,  x x ins., 

ins.  in  the  ground,  for  standard  corner  of  Sections  31  and  32, 
marked  S  C  on  N. ;  with  5  grooves  on  E.  and  one  groove  on 
W.  face;  dig  pits  24x18x12  ins.,  cross-wise  on  each  line  E. 
and  W.,  3  feet  and  N.  of  stone,  7  ft.  dist. ;  and  raise  a  mound 
of  earth  4  ft.  base,  2  ft.  high  N.  of  cor."  It  will  be  noted  that 
this  marks  the  position  of  the  standard  section  corner.18  As 
will  be  noted  the  above  is  the  markings  only  where  stone  and 
pit  and  mound  are  used. 

18Manual   (1902)   74. 


211  MARKING  LINES  AND  CORNERS  §    225 

§  224.  Closing  section  corners. — Closing  section  corners 
may  be  marked  with  post,  stones,  pits,  mounds  of  earth,  trees, 
etc.,  the  same  as  for  other  corners  but  the  markings  on  posts 
and  position  of  pits  and  mounds  indicate  the  location  of  the 
particular  corner.  If  marked  by  stone,  with  pits  and  mounds 
of  earth,  the  notes  for  corners  to  sections  i  and  2  would  read 

something  like  this;  "Set  a  stone,  x x 

ins. ins.  in  the  ground,  for  closing  corner  for  sections  I 

and  2,  marked  C  C  on  S. ;  with  one  groove  on  E.  and  5 
grooves  on  W. ;  dig  pits,  24  x  18  x  12  ins.,  cross-wise  on  each 
line,  E.  and  W.,  3  ft.,  and  S.  of  stone,  7  ft.  dist. ;  and  raise  a 
mound  of  earth  4  ft.  base,  2  ft.  high,  S.  of  cor."  It  will  be 
seen  that  this  marks  the  position  of  the  closing  corner.  If 
trees  are  marked  there  would  be  two  bearing  or  witness-trees.19 

§  225.  Corners  common  to  four  sections. — These  corners 
may  be  marked  with  stone,  wooden  posts,  pits  and  mounds  of 
earth,  and  in  the  same  way,  as  other  corners  are  marked.  The 
marking  must  indicate  the  position  of  the  given  corner.  It 
will  be  noted  that  the  notches  or  grooves  cut  on  the  post  or 
stone  fix  the  position  of  the  required  corner.  When  it  is 
known  that  the  corner  is  one  common  to  four  sections  the 
notches  cut  on  the  stone  or  post  will  show  the  location.  For 
instance,  the  markings  with  stone,  pits  and  mounds  of  earth 
for  corner  to  sections  14,  15,  22,  and  23,  would  be,  as  noted 

in  the  field-notes;  "Set  a stone,  x  x  

ins.,  ins.,  in  the  ground,  for  cor.  of  sections  14, 

15,  22  and  23,  marked  with  3  notches  on  S.  and  2  notches  on 
E.  edge;  dig  pits,  18  x  18  x  12  ins.,  in  each  section  5  and  1/2 
ft.  dist. ;  and  raise  a  mound  of  earth,  4  ft.  base,  2  ft.  high,  W. 
of  cor."  If  the  corner  is  marked  by  bearing-trees  one  tree 
should  be  selected  in  each  of  the  four  sections  of  which  the 
corner  is  a  common  one.20 

19Manual    (1902)    75.  20Manual  (1902)  76. 


§   226  SURVEYING  AND  BOUNDARIES  212 

§  226.  Section  corners  common  to  two  sections  only. — 
These  corners  may  be  marked  similarly  to  other  corners  but 
the  position  of  the  corner  must  be  shown  by  the  markings  on 
the  stone  or  post.  For  instance,  if  the  corner  be  marked  by 
post  and  bearing-trees,  and  it  is  desired  to  mark  the  corner  to 
sections  24  and  25,  township  3  N.,  range  5  W.,  the  notes  to  a 

proper  marking  would  read :  "Set  a post,  3  ft.  long,  4 

ins.  sq.  24  ins.  in  the  ground  for  cor.  of  sections  24  and  25, 
marked  T.  3  N.  S.  25  on  S.  W.,  and  R.  5  W.  S.  24  on  N.  W. 
face,  with  4  notches  on  N.,  and  2  notches  on  S.  edge;  from 

which  A , ins.  diam.,  bears  S. Degs.  W., 

Iks.  dist.  marked  T.  3  N.  R.  5  W.  S.  25  B.  T.  A. , 

ins.  diam.,  bears  N. Degs.,  W., ,  Iks.,  dist.,  marked 

T.  3  N.  R,  5  W.  S.  24  B.  T."  It  will  be  noted  the  given 
corner  is  identified  with  certainty  not  only  by  the  notches 
but  by  the  marked  trees.21 

§  227.  Section  corners  referring  to  one  section  only. — 
Such  corners  are  marked  with  similar  materials  but  marking 
different  and  positions  of  pit  and  mound  of  earth  or  trees  are 
different.  If  it  be  desired  to  mark  a  corner  to  section  10,  twp. 
3  N.,  R.  5  W.  by  post  with  pit  and  mound  of  earth,  the  field- 
notes  would  read :  "Set  a post,  3  ft.  long,  4  ins.  sq.,  with 

marked  stone  (charred  stake  or  quart  of  charcoal),  24  ins.  in 
the  ground,  for  N.  W.  cor.  of  sec.  10;  marked  T.  3  N.  S.  9  on 
N.  E.  R.  5  W.  S.  10  on  S.  E.  S.  9  on  S.  W.,  and  S.  9  on  N.  W. 
face  with  5  notches  on  S.  and  3  notches  on  E.  edge;  dig  a 
pit  36  x  36  x  12  ins.  in  the  sec.  8  ft.  dist.;  and  raise  a  mound 
of  earth,  4  ft.  base,  2  ft.  high,  S.  E.  of  cor/'22 

§  228.  Quarter-section  corners.— Similar  materials  may  be 
used  for  marking  quarter-section  corners  but  the  marks  and 
position  of  letters,  pits,  mounds  and  bearing  trees  differ.  If 
it  be  desired  to  mark  a  quarter-corner  by  a  stone,  pits  and 

mound  of  earth,  the  field-notes  would  read:  "Set  a  

stone, x x ins., ins.  in  ground,  for  1/4 

"Manual  (1902)  77.  22Manual  -(1902)  78. 


213  MARKING  LINES  AND  CORNERS  § 

sec.  cor.  marked  1/4  on  N.  face;  dig  pits,  18  x  18  x  12  ins.,  E. 
and  W.  of  stone,  3  ft.  dist. ;  and  raise  a  mound  of  earth,  3 
and  1/2  ft.  base,  i  and  1/2  ft.  high,  W.  of  cor."23 

On  meridional  lines,  the  pits  will  be  dug  N.  and  S.  and  the 
mound  will  be  placed  on  the  west  side  of  the  corner ;  on  latitudi- 
nal lines  the  pits  will  be  located  E.  and  W.  and  mound  will  be 
built  on  the  north  side  of  the  comer.2*  On  meridional  lines, 
the  marks  will  be  placed  on  the  west  side  and  on  latitudinal 
lines,  on  the  north  side  of  the  stone,  post,  or  other  monument. 
On  meridional  lines,  the  stakes  will  be  driven  in  the  S.  pit, 
and  on  latitudinal  lines,  in  the  E.  pit.25 

As  to  standard  quarter-section  corners  the  instructions  pro- 
vide: "All  standard  quarter-section  corners  on  base  lines  or 
standard  parallel,  will  have  the  letters  "S  C"  (for  standard 
corner),  precede  the  marking  1/4  or  1/4  S.,  as  the  case  may 
be;  such  corner  will  be  established  in  all  other  respects  like 
other  quarter-section  corners."  And  it  is  provided  that  when 
bearing-trees  are  noted  for  standard  quarter-section  corners, 
each  tree  will  be  marked,  S  C  1/4  S  B  T.26 

§  229.  Meander  corners. — Such  corners  may  be  marked 
with  similar  materials.  However,  the  markings  on  the  post 
must  indicate  that  it  marks  a  meander  corner,  thus  "M  C."  If 
it  be  desired  to  mark  a  meander  corner  of  fractional  sections 
26  and  35,  with  stone,  and  pits  and  mound  of  earth,  the  field- 
notes  would  read :  "Set  a stone, x x ins., 

ins.  in  the  ground  for  meander  cor.  of  frac.  sees.  26  and 

35,  marked  "M.  C."  on  E.  face,  with  one  groove  on  S.  face; 
dig  a  pit  36  x  36  x  12  ins.  8  ft.  W.  of  stone ;  and  raise  a  mound 
of  earth,  4  ft.  base,  2  ft.  high,  W.  of  cor."27 

"On  all  meander  corners,"  it  is  said  by  the  instructions,  "the 
letters  'M.  C.'  (for  meander  corner)  will  be  cut  into  the  side 

23Manual   (1902)   79.  26Manual   (1902)  83. 

2*Manual  (1902)  80.  27Manual  (1902)  85. 

25Manual   (1902)  81-2. 


§    229  SURVEYING  AND  BOUNDARIES  214 

facing  the  stream  or  lake  to  be  meandered.  On  post  or  tree 
meander  corners,  within  township  exteriors,  additional  marks 
will  be  placed,  as  follows :  the  township  number  will  be  marked 
on  the  side  opposite  'M.  C.';  the  proper  range  and  section 
number  will  be  placed  on  the  right-hand  side  (when  looking 
along  line  toward  the  stream  or  lake),  and  the  appropriate 
section  number  on  the  opposite  side."  And  it  is  provided  that 
all  meander  corners  on  base  lines  or  standard  parallels  will  be 
further  marked  "S.  C."  on  north  side  of  face.  It  is  also 
provided  by  the  instructions  that:  "On  principal  or  guide 
meridians,  and  on  meridional  township  lines,  the  letters  'M  C' 
will  be  placed  as  above  directed ;  the  township  number  will  be 
marked  on  the  opposite  side;  while  the  proper  range  and  sec- 
tion numbers  will  be  marked  on  the  sides  facing  the  east  and 
west  cardinal  points." 

The  township  and  section  numbers,  on  base  lines  or  standard 
parallels  and  on  latitudinal  township  lines,  will  be  marked  on 
the  sides  facing  the  north  and  south  cardinal  points ;  the  range 
numbers  will  be  placed  on  the  side  opposite  the  marking  'M. 
C.'  The  numbers  indicating  townships,  ranges  and  sections 
will  be  preceded  by  the  initial  letters  T,  R  and  S  respectively 
in  all  markings  referred  to  in  this  paragraph.28  It  will  be  seen 
that  we  have  dealt  very  briefly  with  the  markings  of  corners. 
No  attempt  has  been  made  to  cover  the  various  markings,  but 
enough  has  been  said  to  indicate  the  manner  pursued  by  the 
government.  For  additional  information  the  reader  is  re- 
ferred to  the  Manual  of  Surveying  Instructions.29 

28Manual  (1902)  87.  29Manual  (1902)  64-92  inc. 


CHAPTER  XIII 

IDENTIFICATION   OF   TRACT 

Sec.  Sec. 

230.  Generally.  237.    Original  notes  of  survey. 

231.  Declarations     of     sur-    238.    Omissions    in    calls    may    be 

veyor  since  deceased.  supplied  under  certain  con- 

232.  Declaration     in     favor     and  ditions. 

against  interest.  239.    Conflict     of     calls— Most 

233.  New  Jersey  strict  as  to  dec-  material  calls  control. 

larations.  240.    Mistakes  in  calls  of  a  patent 

234.  Declarations,   acts   and  omis-  may  be  corrected. 

sions     after    parting     with    241.    Plan    not    yet    made    or    re- 
title,  corded. 

235.  The  declarations  of  an  agent. 

236.  Admitted  monuments — Others 

lost. 

§  230.  Generally. — It  frequently  happens  that,  upon  read- 
ing over  the  description  in  a  deed,  and  applying  it  to  the  land, 
there  is  some  apparent  ambiguity,  and  the  surveyor  may  find 
difficulty  in  locating  the  exact  tract  without  a  resort  to  evidence 
outside  of  the  instrument  of  conveyance.  To  the  end  that 
the  surveyor  may  know  the  law,  and  the  bar  have  citations  at 
hand,  we  are  here  laying  down  some  of  the  more  important 
statements  of  the  law  and  the  citations  of  decisions  of  courts 
sustaining  the  several  propositions.  It  is  the  rule  that  the 
identical  monument  of  boundary  referred  to  in  a  deed  is  always 
the  subject  of  parol  testimony.1  If  this  be  so  it  is  important  to 
know  what  kind  of  evidence  is  competent.  The  subject  is  a 
broad  one,  and,  to  treat  it  exhaustively,  would  require  more 

1Ferris  v.  Coover,  10  Cal.  589. 

215 


§    230  SURVEYING  AND  BOUNDARIES  2l6 

space  than  can  be  given  to  this  branch  of  the  work.  We  will, 
however,  consider  the  more  important  principles  of  evidence 
applicable  to  the  title. 

Naturally  the  subject  of  declarations  is  closely  associated 
with  this  title.  It  is  an  important  branch  of  evidence  and  we 
propose  to  treat  it  especially  with  reference  to  the  survey  of 
lands  and  the  identification  of  the  tract.  Gillette,  in  his  ad- 
mirable work  on  Indirect  and  Collateral  Evidence,  says :  "The 
authorities  on  this  subject  (Declarations  of  Deceased  Persons 
as  to  Boundaries)  are  in  a  state  of  great  confusion.  This  is 
due  in  part  to  the  fact  that  many  courts  have  confused  reputa- 
tion and  declarations,  as  evidence  of  boundaries.  And  *  *  * 
well  considered  cases  reject  evidence  of  reputation  to  establish 
boundaries,  except  where  they  are  public  or  quasi  public." 
And  further  on  in  the  same  section,  we  find :  "There  is  a  line 
of  cases  in  this  country  that  authorize  the  introduction  of  the 
declarations  of  deceased  persons  as  to  boundaries,  while  in 
possession  of  land  owned  by  them,  in  the  act  of  pointing  out 
their  boundaries,  and  at  a  time  when  they  had  no  reason  to 
deceive  or  misrepresent.  There  are  also  cases  which  hold  that 
such  declarations  are  competent  although  made  while  off  the 
land  and  not  accompanying  any  act  of  pointing  out  the  boun- 
daries. The  first  line  of  cases  has  the  preponderant  voice 
*  *  *  »2 

In  the  following  pages  we  consider  and  quote  from  various 
authorities,  in  the  different  parts  of  the  United  States,  at 
length,  on  the  matter  of  declarations  of  persons,  since  deceased, 
pertaining  to  the  boundaries  of  lands.  The  reader  will  note 
the  two  lines  of  cases  referred  to  by  Judge  Gillette. 

In  order  that  these  declarations  be  admissible  it  must  appear 
that  they  were  made  prior  to  a  time  when  any  controversy 
existed.3  With  reference  to  this  matter  Mr.  Justice  Lawrence 

2Gillette   Indirect   and   Collateral       3Monkton    v.    Attorney    General, 
Evidence,  171.  2  Russ.  &  M.  147. 


217  IDENTIFICATION  OF  TRACT  §23! 

said :  "Declarations  post  litem  motam — not  merely  after  the 
commencement  of  the  lawsuit,  but  after  the  dispute  has  arisen, 
for  that  is  the  primary  meaning  of  the  word  Us-  ought  not  to 
be  received  as  evidence."  If  made  after  a  controversy  had 
arisen  it  is  more  than  likely  that  the  person  making  it  would 
be  influenced  in  the  making  of  the  declaration  in  the  interest 
of  one  or  the  other  of  the  parties.  Hence,  it  could  not  be  relied 
on.4 

§  231.  Declarations  of  surveyor  since  deceased. — It  has 
been  held  that  the  deposition  of  a  surveyor,  who  ran  the  boun- 
dary line  of  a  grant,  taken  in  an  action,  is  admissible  in  another 
action  between  different  parties,  as  hearsay  evidence,  upon  the 
question  of  the  location  of  such  lines,  after  his  death.5  And 
we  find  the  South  Carolina  court  holding  that  the  declarations 
of  a  surveyor,  deceased,  at  the  time  of  trial,  who  originally 
located  the  land,  are  admissible,  on  a  question  of  the  location 
of  that  land.6  So,  too,  the  acts  and  declarations  of  a  surveyor, 
while  surveying  an  adjacent  lot,  upon  the  question  of  boun- 
dary are  admissible;  the  surveyor  being  now  deceased,  and 
having  no  interest  to  misrepresent  at  the  time  of  such  survey. 
What  the  surveyor  did  and  said  at  the  time  he  found  the 
corner  of  the  land  in  question  may  be  regarded  as  something 
more  decisive  than  the  expression  of  a  mere  naked  opinion.7 
And  we  are  told  that  hearsay  evidence,  if  pertinent  and  ma- 
terial, should  be  received  to  establish  ancient  boundaries.8 
The  general  rule  in  this  country  is  that  the  declarations  of  a 
surveyor  or  his  assistants,  since  deceased,  are  receivable  in  evi- 
dence as  to  the  location  of  a  corner  or  boundary  line,  either 
public  or  private,  when  made  on  the  ground,  in  the  act  of 

4Monkton  v.  Attorney  General,  2  219,  90  Am.  Dec.  569;  Prescott  v. 

Russ.  M.  147.  Hawkins,  22  N.  H.  191;  Van  Deu- 

5Morton  v.  Folger,  15  Cal.  275.  sen    v.   Turner,    12   Pick.    (Mass.) 

6Blythe  v.  Sutherland,  3  McCord  532. 
(S.  Car.)  258.  8Taylor  v.  Fomby,  116  Ala.  621, 

7  Adams   v.    Blodgett,   47   N.   H.  22  So.  910,  67  Am.  St.  149. 


§    231  SURVEYING  AND  BOUNDARIES  2l8 

establishing  the  corner  or  running  the  line,  pointing  out  such 
corner  or  line,  where  there  is  nothing  to  show  that  the  person 
making  the  declaration  had  any  interest  to  state  other  than  the 
truth.  And  it  has  been  held  that  the  field-notes  of  a  surveyor, 
since  deceased,  are  admissible  as  declarations  made  contem- 

A 

poran'eously  with  the  work  done  on  the  ground,  if  such  notes 
are  authenticated  in  some  way,  other  than  by  the  mere  subse- 
quent declarations  of  the  surveyor  himself.9 

And  it  has  been  asserted  by  the  Pennsylvania  court  that : 
"From  an  early  day  in  this  state,  in  litigation  respecting  boun- 
daries, it  has  been"  competent  to  prove,  after  the  death  of  a 
surveyor  who  had  examined  a  line,  what  he  said  respecting  it 
at  the  time  and  on  the  ground.  The  more  careful  and  thor- 
ough his  examination  the  greater  weight  his  testimony  would 
have  if  living,  or  what  he  said  at  the  time,  if  dead.  But  if 
he  examined  the  line,  he  is  a  competent  witness,  and  after  his 
death  his  statements  respecting  the  line,  made  at  the  time  of 
the  examination,  may  be  proved."10 

The  text  above  has  likewise  been  sustained  in  Fry  v.  Stow- 
ers,11  where  the  court  holds :  "The  law  is  well  settled  in  this 
state  that  evidence  is  admissible  to  prove  the  declarations  of  a 
deceased  person  as  to  the  identity  of  a  particular  corner,  tree, 
or  boundary,  provided  such  person  has  peculiar  means  of 

9Hunnicutt  v.  Peyton,  102  U.  S.  Lubold,  88  Pa.  246 ;  Coate  v.  Speer, 
333,  26  L.  ed.  113;  Clement  v.  Pack-  3  McCord  (S.  Car.)  227,  15  Am. 
er,  125  U.  S.  309,  31  L.  ed.  721,  8  Dec.  627;  Montgomery  v.  Lips- 
Sup.  Ct.  907;  Koons  v.  Bryson,  69  comb,  105  Tenn.  144,  58  S.  W.  306; 
Fed.  297;  Morton  v.  Folger,  15  Cottingham  v.  Seward  (Tex.  Civ. 
Cal.  275;  Hamilton  v.  Smith,  74  App.),  25  S.  W.  797;  Simpson  v. 
Conn.  374,  50  Atl.  884;  Adams  v.  DeRamerez,  50  Tex.  Civ.  App.  25, 
Blodgett,  47  N.  H.  219,  90  Am.  no  S.  W.  149;  Turner  Falls  Lum- 
Dec.  569;  Westfelt  v.  Adams,  131  ber  Co.  v.  Burns,  71  Vt.  354,  45 
N.  Car.  379,  42  S.  E.  823;  Cauf-  Atl.  896. 

man  v.  Cedar  Springs  Presbyterian       10Kramer  v.  Goodlander,  98  Pa. 

Cong.,  6  Bin.  (Pa.)  59;  Collins  v.  366. 

Clough,   222   Pa.   St.   472,   71    Atl.       11Fry  v.  Stowers,  92  Va.  13,  22 

1077,  15  Ann.  Cas.  871 ;  Kennedy  v.  S.  E.  500. 


219  IDENTIFICATION  OF  TRACT  §    23! 

knowing  the  fact  in  question,  as,  for  instance,  the  surveyor  or 
chain  carrier  who  were  engaged  upon  the  original  survey,  or 
the  owner  of  the  tract,  or  of  an  adjoining  tract  calling  for  the 
same  boundaries." 

This  principle  is  well  grounded  in  the  law  of  the  several 
states,  and  we  find  the  court  in  Collins  v.  Clough,  supra,  at 
page  484,  saying:  "Declarations  of  deceased  owners  and  sur- 
veyors are  admissible  only  as  they  speak  to  such  independent 
facts,  not  as  establishing  reputation,  but  as  tending  to  establish 
certain  relevant  facts  which  because  of  the  lapse  of  time  are 
not  susceptible  of  more  direct  proof.  It  is  true  historically 
that  when  this  exception  to  the  general  rule  was  first  allowed, 
no  other  limitations  were  imposed  except  that  it  must  be  first 
made  to  appear  that  the  declarant  had  peculiar  means  of 
knowing  the  facts  to  which  he  spoke,  and  had  no  interest  to 
misrepresent.  But  it  is  equally  true  that  when  the  exceptions 
came  to  be  applied  in  Pennsylvania,  it  was  quite  another  limita- 
tion, which  naturally  narrowed  its  field  of  operation,  viz.,  that 
the  declarant  must  have  been  on  the  land  at  the  time  the 
declaration  was  made,  and  engaged  at  the  time  in  pointing  out 
the  boundaries  of  the  land."12  This  is  a  plain  statement  of  the 
rule  as  applied  in  the  greater  number  of  jurisdictions  in  this 
country  as  we  believe.  Some  of  the  courts  lay  special  stress 
on  the  fact  that  the  party  making  the  declarations,  was  at  the 
time,  on  the  land  and  actually  pointing  out  the  line  or  corner. 
This  of  course  greatly  strengthens  the  evidence  and  really 
makes  it  a  part  of  the  res  gestae.  However,  many  courts  of 
splendid  reputations  have  received  such  declarations  by  sur- 
veyors made  at  a  time  when  the  surveyor  was  not  on  the 
ground  but  after  he  had  established  a  corner  and  planted  a 
monument  and  to  which  he  referred  at  the  time.13  In  the 
latter  case  the  declarations  received  were  made  by  a  person 

12Collins  v.   Clough,  222   Pa.'  St.       13Westfelt  v.  Adams,  131  N.  Car. 
472,  71  Atl.  1077,  15  Ann.  Cas.  871.   379,  42  S.   E.  823. 


§    232  SURVEYING  AND  BOUNDARIES  22O 

not  on  the  ground  and  the  boundary  was  not  pointed  out  to 
the  witness  by  the  party  making.  But  such  declarations  are 
not  admissible  where  they  will  tend  to  contradict  the  official 
survey.14  Neither  are  the  declarations  of  a  surveyor,  since 
deceased,  of  his  opinion  as  to  the  location  of  the  line  and  cor- 
rectness of  a  former  survey,  admissible.15  So  also  the  declara- 
tions of  a  deceased  surveyor  as  to  the  character  of  certain 
marks  on  a  tree  amounting  to  a  mere  opinion  as  to  such  marks, 
are  not  admissible.16  It  is  quite  generally  held  that  the 
declarations  must  have  been  made  when  the  surveyor  and  the 
witness  who  testifies  thereto  were  on  the  land  and  the  former 
was  pointing  out  or  marking  the  boundaries  or  corners  or 
performing  some  other  duty  relative  thereto.17 

§  232.  Declaration  in  favor  and  against  interest. — It  will 
be  noted  that  some  of  the  courts  hold  that  under  no  circum- 
stances will  declarations  of  a  former  owner  of  land,  now  de- 
ceased, be  received  in  evidence  unless  against  interest.  Other 
courts  hold  such  declarations  admissible,  if  made  before  any 
litigation  or  controversy  arose,  while  in  possession  as  owner 
of  the  land,  and  in  a  position  to  have  had  knowledge  of  the 
facts  to  which  the  declarations  relate  and  there  being  no  ap- 
parent reason  for  falsifying.  The  court  should  receive  such 
declarations  with  great  caution,  where  they  are  not  against 
interest,  in  order  to  prevent  an  owner  of  land  making  such 
declarations  in  his  own  interest,  to  be  thereafter  used  by  his 
heirs  or  grantees.  Still  it  has  been  held  that  the  declarations 
of  a  former  owner  of  land,  now  deceased,  made  while  in  pos- 
session, are  competent  upon  the  question  of  its  boundaries  in 

"Reusens  v.  Lawson,  91  Va.  226,  16Wallace  v.  Goodall,  18  N.  H. 
21  S.  E.  347.  439- 

15Russell  v.  Hunnicutt,  70  Tex.  17Hunnicutt  v.  Peyton,  102  U.  S. 
657,  8  S.  W.  500.  333,  26  L  ed.  113;  Martin  v.  Hughes, 

90  Fed.  632. 


221  IDENTIFICATION  OF  TRACT  §    234 

favor  of  as  well  as  against  one  claiming  under  him.18  And  it 
has  been  held  in  some  states  that  private  boundaries  may -be 
proven  by  common  repute,  as  well  as  direct  evidence,  but  in 
either  case  the  proof  must  show  the  boundary  with  reasonable 
certainty.19 

§  233-  New  Jersey  strict  as  to  declarations. — In  some 
states  the  rule  with  reference  to  declarations  is  exceedingly 
rigid.  It  is  held  in  some  jurisdictions  that  such  declarations 
should  only  be  received  to  establish  recognized  public  boun- 
daries, as  distinguished  from  private.20  In  the  latter  case  the 
court  says :  "But  the  decided  weight  of  authority  in  this  coun- 
try, and  upon  the  solid  ground  of  reason  and  principle,  is 
against  the  admissibility  of  evidence  of  such  character."21 
While  we  are  satisfied  the  New  Jersey  court  in  this  case  is  in 
error  as  to  weight  of  authority,  in  this  country,  yet  the  Eng- 
lish rule  is  to  that  effect.22  There  is  also  some  respectable 
authority  in  this  country  to  sustain  the  New  Jersey  court. 
However,  it  will  be  found  that  many  of  the  cases  holding  with 
that  court  so  hold  for  the  reason  that  the  facts,  in  the  particular 
action,  are  not  within  the  regular  rule  as  held  by  a  majority  of 
the  courts  in  this  country.  Clearly  the  reason  of  the  rule  and 
the  weight  of  authority  in  this  country  is  the  other  way.23 

§  234.  Declarations,  acts  and  omissions  after  parting  with 
title. — As  a  general  rule  the  acts,  declarations  and  omissions  of 
a  person,  after  parting  with  title,  can  not  be  given  in  evidence 
against  his  grantee,  even  though  he  still  owns  land  affected 
by  such  acts,  etc.,  and  such  acts  were  against  his  interest  at 

18Nutter    v.    Tucker,    67    N.    H.  21Curtis  v.  Aaronson,  49  N.  J.  L. 

185,  30  Atl.  352,  68  Am.  St.  647;  68,  7  Atl.  886,  60  Am.  Rep.  584. 

South  Hampton  v.  Fowler,  54  N.  H.  22Clement  v.   Packer,   125   U.   S. 

J97-  309,  31  L.  ed.  721,  8  Sup.  Ct.  907. 

19Nixon  v.  Porter,  34  Miss.  697,  23Clement   v.   Packer,   125   U.   S. 

69  Am.  Dec.  408.  309,  31  L.  ed.  721,  8  Sup.  Ct.  907. 

20Curtis  v.  Aaronson,  49  N.  J.  L. 
68,  7  Atl.  886,  60  Am.  Rep.  584. 


§   235  SURVEYING  AND  BOUNDARIES  222 

the  time  they  took  place,  and  it  is  said :  "The  acts  and  omis- 
sions of  the  grantor  of  lands,  respecting  a  disputed  boundary 
line,  done  or  made  by  him  after  he  has  parted  with  his  title,  are 
not  admissible  against  his  grantee ;  and  the  rule  is  not  changed, 
although  he  retains  the  ownership  of  other  lands  affected  by 
the  same  disputed  boundary  line,  and  his  acts  and  omissions 
relate  to  his  own  lands."24 

§  235.  The  declarations  of  an  agent. — The  acts,  and  declar- 
ations of  an  authorized  agent,  if  made  within  the  apparent 
scope  of  his  authority,  are  binding  on  the  principal.25  And 
the  principal  is  bound  by  such  acts  and  declarations  whether 
he  knew  them  or  not.  Certainly  where  the  principal  authorized 
the  acts  or  declarations  he  would  be  bound.  We  find  the 
Connecticut  court  saying:  "The  acts  and  declarations  of  an 
agent  within  the  apparent  scope  of  his  authority  are  binding 
on  the  principal  whether  he  knew  it  or  not."26  Evidently  the 
general  rule  as  to  agency  applies  in  such  cases. 

§  236.  Admitted  monuments — Others  lost. — When  ad- 
mitted marks  and  monuments  are  found,  answering  to  the  calls 
of  the  survey,  they  establish  conclusively  the  location.  If 
some  only  of  these  marks  and  monuments  can  be  found,  it  is 
entirely  competent  to  show  that  others  answering  to  the  calls 
did  at  one  time  exist.27  And  it  is  only  in  the  absence  of  orig- 
inal marks  and  monuments  upon  the  ground,  and  the  total 
failure  of  evidence  to  supply  them,  that  recourse  can  be  had  to 
the  lines  and  calls  of  the  block,  or  the  lines  and  calls  of  any 
junior  member  of  the  block,  or  any  other.  Both  these  meth- 
ods can  not  be  resorted  to  at  the  same  time.28 

24Hills  v.  Ludwig,  46  Ohio  St.  107,  49  Atl.  910,  53  L.  R.  A.  699,  92 

373,  24  N.  E.  596.  •  Am.  St.  199. 

25Carney  v.  Hennessey,  74  Conn.  27 Collins  v.  Clough,  222  Pa.  St. 

107,  49  Atl.  910,  53  L.  R.  A.  699,  472,  71  Atl.  1077,  15  Ann.  Cas.  871. 

92  Am.  St.  199.  28Collins  v.  Clough,  222  Pa.  St. 

26Carney  v.  Hennessey,  74  Conn.  472,  71  Atl.  1077,  15  Ann.  Cas.  871. 


223  IDENTIFICATION  OF  TRACT  §    238 

§  237.  Original  notes  of  survey. — In  establishing  an  origi- 
nal line  of  a  survey  as  made  by  the  government,  according  to 
the  field-notes  used  in  such  survey,  attention  must  first  be 
given  to  calls  in  such  notes  for  natural  or  artificial  monuments, 
and  if  these  can  not  be  found  recourse  may  be  had  to  courses 
and  distances.  All  disputes  as  to  boundary  lines  are  to  be 
governed  by  the  United  States  survey,  and  lines  of  sections 
and  subdivisions  thereof  are  to  be  located  by  the  original  gov- 
ernment survey.29  And  it  is  the  universal  rule  that  courses 
and  distances  must  yield  to  actually  existing  monuments,  or  to 
the  site  of  their  former  location,  if  that  has  been  clearly  estab- 
lished.30 So  also  it  is  the  rule  that  the  true  corner  of  a  gov- 
ernment subdivision  is  where  the  government  surveyors  placed 
it.31  If  that  corner  be  lost  it  may  be  relocated  by  other  com- 
petent evidence  which  clearly  establishes  the  corner.32  If  a 
government  corner  be  lost  it  may  be  re-established  by  the  evi- 
dence of  old  residents  who  once  knew  of  its  location  and  this 
may  be  applied  to  locate  a  highway  which  once  bounded  the 
granted  land,  but  which  was  later  discontinued.33  In  the  latter 
case  the  question  was  as  to  the  location  of  an  old  highway 
which  had  been  discontinued  many  years.  Persons  who  once 
knew  the  location  were  permitted  to  testify  to  such  location 
at  the  trial.34 

§  238.  Omissions  in  calls  may  be  supplied  under  certain 
conditions. — Where,  from  all  of  the  surrounding  circumstances, 
it  is  evident  there  has  been  an  omission  of  one  of  the  sides  of 
the  tract  in  a  survey  and  by  supplying  that  omitted  side  the 

29Taylor  v.  Fomby,  116  Ala.  621,  31Beardsley  v.   Crane,   52   Minn. 

22  So.  910,  67  Am.  St.  149;  Billings-  537,   54   N.   W.   740. 

ley  v.  Bates,  30  Ala.  3?6,  68  A.  M.  32Beltz  v.  Mathiowitz,  72  Minn. 

Dec.  126.  443,  75  N.  W.  699. 

30Chan  v.  Brandt,  45  Minn.  93,  47  33Yanish    v.    Tarbox,    49    Minn. 

N.  W.  461 ;  Beltz  v.  Mathiowitz,  72  268,  51   N.  W.  1051. 

Minn.  443,  75  N.  W.  699;  Vanish  3*Yanish  v.  Tarbox,  57  Minn.  245, 

v.  Tarbox,  49  Minn.  268,  51  N.  W.  59  N.  W.  300. 
1051. 


§  239  SURVEYING  AND  BOUNDARIES  224 

tract  will  appear  as  regular  and  will  carry  the  required  amount 
of  land  and,  by  using  six  sides,  instead  of  five  as  found  in  the 
description,  the  said  six  sides  will  join  and  be  brought  together, 
it  will  be  permissible  for  the  court  to  supply  the  omitted  call.35 
In  the  case  cited  the  quantity  of  land  called  for  in  a  patent  and 
certificate  of  survey  was  eighty-four  acres,  and  it  was  said  in 
both  documents  to  be  included  in  five  lines  and  angles.  But 
the  plat  annexed  to  the  survey  represents  the  tract  as  one 
bounded  by  six  lines.  If  taken  to  be  bounded  by  five  lines  the 
quantity  never  can  be  had  and  the  lines  can  never  come  together. 
By  using  the  five  courses  and  distances  the  lines  do  not  come 
together  and  one  side  of  the  tract  is  left  open.  By  connecting 
with  a  sixth  line  the  tract  will  be  substantially  correct  as  to 
area  and  balance  of  the  lines.  Hence  it  will  be  presumed  that 
the  surveyor  omitted  to  make  a  record  of  one  of  the  lines.  By 
supplying  the  sixth  side  the  patent  will  be  sustained.  It  way 
held  the  court  properly  supplied  the  omitted  side. 

§  239.  Conflict  of  calls — Most  material  calls  control. — It 
is  not  uncommon  to  find  a  conflict  in  the  calls  of  a  description 
of  a  survey.  All  such  conflicts  are  manifestly  the  result  of 
errors  in  reading  or  entering  courses  and  distances  or  in  copy- 
ing them.  They  become  very  material  in  all  those  cases  where 
the  line  or  corner  in  question  is  lost.  It  is  then  up  to  the 
surveyor  to  make  a  selection  between  the  conflicting  calls.  The 
courts  have  laid  down  certain  rules  to  guide  the  surveyor  in  his 
determination  to  accept  certain  calls  in  preference  to  others. 
It  is  not  always  that  the  surrounding  circumstances  will  war- 
rant him  in  accepting  those  rules  in  all  cases.  However,  in 
the  great  majority  of  cases  the  surveyor  should  be  governed 
by  them.  It  is  the  rule  that  the  most  material  and  certain  calls 
shall  control  those  which  are  less  material  and  less  certain.  A 
call  for  a  natural  object,  as  a  river,  a  known  stream,  a  spring, 

35Alexander   v.    Lively,   5   T.   B. 
Mon.    (Ky.)    159,  17  Am.  Dec.  50. 


225  IDENTIFICATION  OF  TRACT  §    24! 

or  even  a  marked  tree,  shall  control  over  courses  and  distances. 
Natural  objects  are  the  most  certain;  artificial  objects  the  next 
and  courses  and  distances  the  most  unreliable  calls.36  The 
surveyor  should  look  into  the  surrounding  circumstances  and 
then  make  his  election  as  to  the  calls  he  will  disregard. 

§  240.  Mistakes  in  calls  of  a  patent  may  be  corrected. — A 
mistake  in  the  calls  of  a  patent  may  be  corrected  by  a  reference 
to  the  plat  and  certificate  of  survey.  As  is  known  the  plat 
and  certificate  are  evidence  of  the  original  position  of  the 
corners,  and  when  they  can  be  ascertained  they  will  control, 
though  variant  from  the  description  contained  in  the  patent.37 
And  on  a  resurvey  of  land  to  establish  a  lost  boundary,  the 
original  corners  established  by  the  government  surveyors,  if 
they  can  be  found,  govern;  or  if  they  can  not  be  found  and 
the  place  where  they  were  originally  established,  can  be  def- 
initely determined,  are  conclusive  regardless  of  the  correct- 
ness of  the  location.38  So  also,  a  disputed  quarter-section 
corner  of  land  as  surveyed  by  the  government,  not  being  other- 
wise established  beyond  a  doubt,  the  government  surveyor's 
field-notes,  giving  the  trend  of  the  line,  together  with  the  dis- 
tances run,  are  material  and  competent  evidence  in  fixing  the 
original  location  of  such  corner.39  As  we  shall  see  hereafter, 
extrinsic  evidence  may  be  received  in  establishing  the  location 
of  the  original  corner,  now  lost  or  obliterated.40 

§  241.  Plan  not  yet  made  or  recorded. — It  sometimes  hap- 
pens that  an  owner  will  have  a  tract  of  land  subdivided  into 
lots  and  blocks  and,  either  never  have  a  plat  made  thereof,  or 
having  had  a  plat  made,  neglected  to  record  it.  Subsequently 
he  will  execute  and  deliver  conveyances  of  the  lots  and  blocks 

^Stafford  v.  King,  30  Tex.  257,  29  Utah  108,  80  Pac.  382,  no  Am. 

94  Am.  Dec.  304.  St.  666. 

37Steele  v.  Taylor,  3  A.  K.  Marsh,  39Kellog  v.  Finn,  22  S.  Dak.  578, 

(Ky.)  225,  13  Am.  Dec.  151.  up  N.  W.  545,  133  Am.  St.  945- 

38Washington  Rock  Co.  v.  Young,  40Post  ch.  XVI. 


§    241  SURVEYING  AND  BOUNDARIES  226 

so  surveyed.  It  is  manifest  that  the  party  must  resort  to  evi- 
dence aliunde  to  identify  the  tract  conveyed.  If  a  plat  has 
been  made  and  not  recorded  undoubtedly  the  court  would  re- 
ceive such  unrecorded  plat  to  identify  the  land  conveyed.41 
As  a  matter  of  fact  the  owner  should  not  have  conveyed  the 
property  by  a  reference  to  the  unrecorded  plat.  In  some 
states  there  is  a  positive  statute  against  it.  Without  the  iden- 
tification of  the  tract  described  by  evidence  dehors  the  instru- 
ment it  would  be  ineffective  to  convey  the  property  intended. 
The  platting  of  land  into  streets,  blocks  and  lots  operates  as  a 
dedication  of  the  streets  and  public  places  to  the  use  of  the 
public.  This  is  so  by  statute  in  some  states.42  And  it  has  been 
held  where  land  is  conveyed  as  bounded  by  a  street,  repre- 
sented on  a  plan,  but  not  yet  made,  the  soil  of  the  contemplated 
street,  though  owned  by  the  grantor,  does  not  pass  by  the  con- 
veyance.*3 

"Post  ch.  XVI.  *3Palmer  v.  Dougherty,  33  Maine 

*2Minn.  Gen.  Stat.  1913,  sec.  6857 ;   502,  54  Am.  Dec.  636. 
Wis.  1921  Stat,  sec.  2263. 


CHAPTER  XIV 


RIPARIAN    RIGHTS 


Sec.  Sec. 

242.  Generally.  259. 

243.  Alluvium    soil    is    of    imper- 

ceptible growth. 

244.  Riparian      owners      are      the   260. 

owners      of      the      alluvial 
deposits.  261. 

245.  Dereliction — Reliction. 

246.  Avulsion.  262. 

247.  Riparian  rights   in  waters   in 

Pacific  coast  states. 

248.  Accretion   and   alluvium   par-  263. 

tition  of. 

249.  Right   to   accretion    may   rest    264. 

on  lands  of  another. 

250.  State      boundary   —   gradual   265. 

changes. 

251.  State       boundary — S  u  d  d  e  n 

changes.  266. 

252.  Boundary  line  between  states    267. 

center  line   of   main   chan- 
nel. 268. 

253.  Unsurveyed    islands    in    navi- 

gable rivers. 

254.  Apportion    navigable    waters    269. 

to  owners  of  shore  line. 

255.  Shifting     water     line     the    270. 

boundary. 

256.  Nonnavigable  lake  a  bounda-    271. 

ry. 

257-  No  reservation  between  me- 
ander line  and  water.  272. 

258.  Takes  beyond  meander  line 
and  quarter  line  to  water. 


Division  of  docking  privileges 
on  meandered  and  nav- 
igable stream. 

Meaning  of  shore  and  shore 
line. 

Division  where  stream  is 
straight. 

Owner  of  bank,  owner  of 
bed  of  stream  or  inlet  and 
of  beneficial  use  thereof. 

Rule  for  division  of  shore  on 
rivers  and  lakes  differ. 

Riparian  owner  entitled  to 
island  in  stream. 

Riparian  owner  has  free  ac- 
cess to  navigable  part  of 
stream. 

Title  by  accretion  may  be  lost. 

Regaining  land  lost  by  ero- 
sion or  submergence. 

Division  of  accretion  where 
shore  line  approximately 
straight. 

Division  where  shore  line 
curves. 

Division    of    cove    privileges 

on  land  bordering  on  sea. 

General  rule  of  division  of 
accretion  must  give  way 
under  special  circumstances. 

Line  of  division  of  flats  to 
run  at  right  angles  to  low- 
water  mark. 


227 


SURVEYING   AND   BOUNDARIES 


228 


Sec.  Sec. 

273.  Lake  dried  up  Riparian  entry-  293. 

man's  rights. 

274.  Fraudulent    survey    and    re- 

turn   by    government    offi-  294. 

cials — Meander  line  held  to 

be  the  boundary  line.  295. 

275.  Conveyance     on     meandered 

lake  carries  all  the  land.      296. 

276.  Law  of  state  determines  title 

to  land  under  lake.  297. 

277.  Title  to  bed  of  navigable  and 

nonnavigable  waters.  298. 

278.  Division    of    alluvial    on    un- 

navigable  river.  299. 

279.  Meander     line     and     official 

plat.  300. 

280.  Riparian    rights    on    nonnav- 

igable   lake    same    as     on  301. 
streams. 

281.  Patent  of  lake  shore  carries  302. 

all  of  the  land. 

282.  Division   of   rights   of  accre- 

tion   among   riparian    own-  303. 
ers. 

283.  Meander    line    run    as    near  304. 

water  as  possible. 

284.  Where  water  line  the  bounda-  305. 

,  ry  but  shifts.  306. 

285.  To  entitle  party  to  alluvium, 

water  must  form  boundary.  307. 

286.  Doctrine     of     accretion     ap- 

plies to  states  and  nations,.  308. 

287.  Local    laws    generally    deter-  3083. 

mine  rights  of  accretion.       309. 

288.  Public   or   private   road   may 

modify  rule.  310. 

289.  Accumulation  on  shore  or  fill- 

ing up  from  bottom.  311. 

290.  Batture— Shoals— Shallows. 

291.  Loss  by  accretion  or  submer-  312. 

gence. 

292.  Strip    of   land   between   bank  313. 

and  meander  line. 


Boundary  line  between  states 
is  center  line  of  main  chan- 
nel. 

Unsurveyed  island  in  nav- 
igable river. 

Title  to  beds  of  navigable 
rivers. 

Accretion  and  movable  is- 
lands— Avulsion. 

Right  to  build  wharves  and 
docks. 

High-water  mark  and  low- 
water  mark. 

Water  must  form  boundary 
to  give  riparian  rights. 

Additional  rules  for  appor- 
tioning flats. 

Division  of  bed  of  round 
lake. 

Division  of  dock  privileges 
distinguished  between  di- 
vision of  bed  of  lake. 

State  owns  the  beds  of  navi- 
gable streams  and  lakes. 

Meander  line  established  by 
gross  fraud  or  mistake. 

Division  of  cove  flats. 

Rules  for  division  of  shore 
line. 

Irregular  line  s — Islands — 
Straight  lines. 

Islands. 
Straight  lines. 

Division  by  shortest  distance 
to  stream. 

Accretion  —  Revulsion  —  R  e- 
liction. 

Rights  on  navigable  and  non- 
navigable  waters. 

Riparian  rights— Release  and 
extent  of. 

What  is  a  navigable  river? 


229 


RIPARIAN   RIGHTS  §    242 


Sec.  Sec. 

314.  Riparian     rights     a     valuable  321.    Revulsion  of  river — Boundary 

appurtenant.  remains  unchanged. 

315.  Riparian  owners.  322.     Division     of     long     irregular 

316.  Boundaries    between    owners  lake  bed. 

of  accretion.  323.    Title   to    bed    and    shores    of 

317.  Island  and  main  shore.  water    ways. 

318.  Course  of  stream  changing.  324.    Laws  of  state  determine  ex- 

319.  How  to  find  center  of  thread  tent    of     riparian    proprie- 

of  stream.  tor's  rights. 

320.  Right    to    accretions    depends  325.    Division    by    bisecting    angle 

on    conditions    at    date    of  between  curved  shores, 

grant.  326.    Partition   of   land   on   inland 

lakes. 

§  242.  Generally. — One  of  the  most  important  property 
rights  is  that  of  the  riparian  proprietor.  This  right  has  always 
been  recognized  and  carefully  guarded  by  the  courts.  Further- 
more the  government  has,  from  an  early  date,  where  there  has 
been  no  fraud  or  mistake  in  locating  the  meander  line,  held 
that,  in  conveying  lands  adjacent  to  a  body  of  water,  it  has 
parted  with  all  of  its  riparian  rights  and  transferred  them  to 
the  patentee.  These  rights  manifest  themselves  in  many  ways, 
such  as  dock  privileges,  shore  privileges,  mill  privileges,  dam 
privileges,  rights  in  the  bed  under  shallow  waters,  rights  in 
dried  up  beds  of  lakes,  rights  where  the  stream  or  body  of 
water  has  suddenly  changed  the  shore  line,  rights  where  the 
change  has  been  gradual  and  imperceptible,  and  kindred 
rights.  In  this  chapter  we  shall  consider  all  of  these  rights, 
especially  with  reference  to  the  proper  division  thereof  among 
the  riparian  proprietors.  We  shall  treat  of  varied  problems 
which  the  professions  meet  with  in  actual  practice,  citing  de- 
cisions of  the  courts  to  sustain  each  proposition  laid  down. 
We  shall  consider  alluvium,  accretion,  avulsion,  and  reliction, 
especially  treating  of  the  rights  of  the  riparian  owner  in  each 
instance,  giving  concrete  examples  which  have  been  before  the 
courts. 


§   243  SURVEYING  AND  BOUNDARIES  230 

In  those  states  where  lakes  are  numerous  a  large  amount  of 
litigation  has  been  before  the  courts  relative  to  the  proper 
division  of  lake  beds  left  dry  by  the  recession  of  the  waters. 
What  is  the  proper  division  among  riparian  owners  of  the 
beds  of  streams  or  lakes  left  dry?  How  should  the  dock  line 
between  two  riparian  owners  on  a  navigable  lake  or  river  be 
run  ?  How  should  the  division  line  between  riparian  owners  be 
run  in  partitioning  the  equitable  rights  of  riparian  owners  to 
flats  or  shallows  ?  These  questions  are  frequently  confronting 
the  professions  and,  to  the  end  that  such  problems  may  be 
answered  properly,  equitably  and  legally  this  chapter  is  largely 
devoted.  A  large  number  of  diagrams  have  been  inserted. 
These  should  be  carefully  studied  by  the  reader. 

§  243.  Alluvium  soil  is  of  imperceptible  growth. — Bouvier, 
in  his  law  dictionary,  defines  alluvium  to  be:  "That  increase 
of  the  earth  on  a  shore  or  bank  of  a  river,  or  to  the  shore  of 
the  sea,  by  the  force  of  the  water,  as  by  a  current  or  by  the 
waves,  which  is  so  gradual  that  no  one  can  judge  how  much  is 
added  at  each  moment  of  time."1  Many  nice  questions  have 
arisen  in  the  divisions  of  these  accumulations  between  the 
riparian  owners.  The  shape  and  length  of  the  shore,  the  size 
of  the  body  of  water,  and  the  lengths  of  the  old  and  new  shore 
lines  play  an  important  part  in  such  division.  So,  also,  the 
thread  of  the  stream,  and  the  center  and  shape  of  small  lakes 
and  ponds  are  some  of  the  controlling  features.  In  a  partition 
of  the  right  to  build  docks  to  the  navigable  parts  of  a  lake,  the 
shape  and  length  of  the  line  of  navigability,  as  well  as  the  shape 
and  length  of  the  shore  line  are  of  prime  importance,  as  we 
shall  see  in  this  chapter. 

It  will  be  seen  by  a  glance  at  the  authorities  cited  in  the 
following  pages  that  different  courts  have  established  various 

1Bouvier's  Law  Dictionary,  Title, 
"Alluvium",  Angell,  Water  Courses, 
53- 


23!  RIPARIAN    RIGHTS  §    244 

rules  in  seeking  to  find  an  "equitable  division"  of  the  alluvium, 
or  what  amounts  to  the  same  thing,  an  equitable  division  of 
dock  privileges  to  the  line  of  navigation.  Many  courts  con- 
fess no  general  rule  can  be  laid  down.  However,  many  excel- 
lent rules  have  been  promulgated  by  the  courts  and  they 
should  not  be  disregarded.  They  point  the  way,  not  only  to 
an  equitable  division,  but  to  one  which  will  be  sustained  by 
the  courts.  The  reader  is  referred  to  the  numerous  citations, 
diagrams  and  demonstrations  in  the  following  pages.  They 
will  form  a  basis  for  a  partition  of  the  shore  lines  of  most 
bodies  of  water  and  should  be  carefully  studied.  When  the 
surveyor  has  such  a  problem  he  should  procure  all  possible 
data,  consult  the  authorities,  especially  of  his  own  state,  and 
follow  the  rule  which  will  equitably  partition  the  shore  line 
or  rights  among  all  riparian  owners  of  that  part  of  the  body 
of  water. 

Treating  further  of  alluvium  we  find  the  courts  have  said : 
"Alluvium  is  a  term  applied  to  those  accumulations  of  soil, 
earth  and  loose  stones  or  gravel  brought  down  by  a  river, 
which,  when  spread  out  to  any  extent,  form  what  is  called 
alluvial  land.  It  is  the  addition  made  to  land  by  the  washing 
of  the  seas  or  river;  and  its  characteristic  is  its  imperceptible 
increase,  so  that  it  can  not  be  perceived  how  much  is  added  in 
each  moment  of  time."2 

§  244.  Riparian  owners  are  the  owners  of  the  alluvial  de- 
posits.— All  of  the  courts  agree  that  the  riparian  owner,  if  not 
restricted  by  his  grant,  is  the  owner  of  the  alluvial  deposit,  and, 
subject  to  the  rights  of  the  public  to  pass  over  the  water,  to  his 
equitable  portion  of  the  bed  of  the  stream  or  lake  to  the  line  of 
navigability.3  It  was  said  by  the  court  in  the  case  cited : 

2Freeland    v.    Pennsylvania    Ry.          3Lovingston  v.   St.  Clair  Co.,  64 
Co.,  197  Pa.  St.  529,  47  Atl.  745,  80      111.  56,  16  Am.  Rep.  516. 
Am.  St.  850,  58  L.  R.  A.  206;  Lov- 
ingston  v.  St.  Clair  Co.,  64  111.  56, 
16  Am.  Rep.  516. 


§   244  SURVEYING  AND  BOUNDARIES  232 

"The  only  construction  to  be  given  these  grants  is  that  the 
United  States  has  conveyed  the  land  to  the  bank  of  the  Mis- 
sissippi river.  It  follows  that  the  grantees  were  riparian 
owners  of  the  alluvial  formation  attached  to  their  lands."  And 
in  a  case  where  the  right  of  the  riparian  proprietor  to  take 
sea  weed  stranded  upon  the  shore  it  was  said :  "The  right  to 
take  sea  weed  stranded  upon  a  beach  belongs  to  the  littoral 
proprietor  (so  long  as  the  state  asserts  no  claim),  upon  the 
doctrine  of  accretion,  and  is  not  a  public  right."4  And  it  was 
decided  by  the  Iowa  court,  in  a  case  in  which  the  plaintiff  was 
the  owner  of  certain  lands  fronting  on  the  meander  line  of 
the  Missouri  river,  and  between  which  line  and  the  water  a 
strip  of  land  had  been  gradually  added  since  the  year  1860, 
by  the  action  of  the  river,  and  which  addition  was  not  caused 
by  a  sudden  disruption  from  the  land  of  another  but  was 
slow  and  imperceptible,  that  the  plaintiff  was  the  owner  of 
such  strip.5  So  too,  we  find  that  the  alluvium  or  alluvial  be- 
longs to  the  proprietor  of  the  shore.6  The  reader  should  be 
careful  not  to  confuse  alluvium  or  alluvial  with  avulsion. 
Avulsion  is  a  sudden  and  perceptible  change  or  growth.7  And 
it  has  been  held  that  the  title  by  accretion  or  alluvium  extends 
to  the  new  shore  line  though  beyond  the  original  line,  once 
washed  away,  and  in  which  the  stream  thereafter  receded.8 
Ajid  the  United  States  Supreme  Court  has  held  that  where  a 
stream  changes  its  course  gradually  by  alluvial  or  alluvium, 
the  owner  of  the  land  on  such  stream,  holds  to  the  stream,  in- 
cluding the  alluvium;  and  also  that  owners  of  land  thus 
bounded  are  subject  to  loss  of  what  they  have  gained  by  the 
same  means — the  gradual  washing  away  of  the  soil.8  And 

*Carr  v.  Carpenter,  22  R.  I.  528,  8St.  Louis  v.  Rutz,  138  U.  S.  226, 

48  All.  805,  53  L.  R.  A.  333.  34  L.  ed.  941,  n  Sup.  Ct.  337- 

6Coulthard  v.  Stevens,  84  Iowa  9New  Orleans  v.  United  States,  10 

241,  50  N.  W.  983.  Pet.  (U.  S.)  662,  9  L.  ed  573- 

6i  Washburn  Real  Property  451. 

7Post  9  «46. 


233  RIPARIAN    RIGHTS  §    245 

that  court  has  held  that  imperceptible  accretion  belongs  to  the 
owner  of  the  shore,  whether  the  water  is  fresh  or  salt.10  Like- 
wise we  find  that  where  a  lot  is  bounded  by  water  and  that 
water  gradually  shifts,  the  water  line  remains  the  boundary, 
and  a  deed  describing  the  lot  by  number  conveys  the  land  to 
the  water  line.11  And  it  is  the  rule  that  the  right  of  a  riparian 
owner  is  a  vested  one  and  it  applies  to  streams  that  do  or  do  not 
overflow.12  So  also,  grants  of  land,  in  Illinois,  to  fresh  water 
rivers,  give  title  to  the  grantee  to  the  thread  of  the  stream  and 
the  owner  is  entitled  to  the  accretion.13  And  the  size  of  the 
river  does  not  alter  the  rule  —  it  applies  to  large  and  small 
streams.14  It  is  said  that  an  island  in  a  nonnavigable  stream 
formed  by  accretion,  and  which  was  not  meandered,  belongs 
to  the  owner  of  the  shore  on  the  same  side  of  the  stream  or 
current.15 

§  245.  Dereliction— Reliction.— It  would  seem  that  dere- 
liction and  reliction  are  the  same.  The  former  is  defined  to  be 
land  left  uncovered  by  the  receding  of  the  water.16  The  latter 
is  represented  as  an  increase  of  land  by  the  retreat  or  recession 
of  the  sea  or  river.17  It  is  said  that  the  ebb  and  flow  of  the 
tide  leaves  the  title  to  the  bed  of  the  stream  or  sea  in  the  state.18 
Where  the  recession  is  gradual,  or  where  it  takes  place  in  fresh 
water  rivers,  the  bed  of  which  belongs  to  riparian  owners,  the 
land  so  formed  by  reliction  belongs  to  the  riparian  owner.  It 
has  been  held  in  the  United  States  that  if  a  navigable  lake 
recedes  gradually  the  bare  land  belongs  to  the  owner  of  the 

10Shively  v.  Bowlby,  152  U.  S.  I,  Shriver,  64  N,  J.  L.  550,  46  Atl.  690. 

38  L.  ed.  331,  14  Sup.  Ct.  548.  51  L.  R.  A.  425. 

"Jeffries   v.   East   Omaha  Land  152  Washburn  Real  Property  452- 

Co.,  134  U.  S.  178,  33  L.  ed.  872,  10  3;  Ex  parte  Jennings,  Pars  Prima, 

Sup.  Ct.  518.  6  Cow.    (N.  Y.)    537;   Webber   v. 

12St.  Clair  Co.  v.  Lovingston,  23  Axtell,  94  Minn.  375,   102  N.   W. 

Wall.  (U.  S.)  46.  915,  6  L.  R.  A.  (N.  S.)  194. 

13Jones  v.  Soulard,  24  How.  (U.  162  Blk.  Com.  262. 

S.)  41.  17Bouvier's  Dictionary. 

14Ocean      City      Association      v.  18Angell  Tide  Waters,  264-7. 


§    246  SURVEYING  AND  BOUNDARIES  234 

bank,  but  on  the  other  hand  if  the  recession  be  sudden  and 
sensible,  the  "made  land"  belongs  to  the  state.19  And  Black- 
stone  lays  down  the  rule  that  where  the  dereliction  or  reces- 
sion is  gradual  the  land  belongs  to  the  riparian  owner.20  But 
when  the  change  is  sudden  it  belongs  to  the  government.21 
The  latter  situation  would  probably  not  be  held  to  obtain  in 
this  country,  as  it  has  generally  been  held  that  the  former 
owner  may  claim  such  land  wherever  he  can  find  it  and  iden- 
tify it  as  his  own.22 

§  246.  Avulsion. — Avulsion  is  defined  to  be  the  removal 
of  a  considerable  quantity  of  soil  from  the  land  of  one  man, 
and  its  deposit  on  or  annexation  to  the  land  of  another,  sud- 
denly and  by  the  perceptible  action  of  the  water.23  And  it  is 
said  in  that  event  the  land  belongs  to  the  first  owner.24  But  in 
order  that  it  be  avulsion  the  change  must  be  sudden.  This 
sudden  change  does  not  deprive  the  owner  of  his  fee  or  change 
the  boundary  lines  as  they  were  at  the  time  the  land  began  to 
be  washed  away.25  And  the  same  rule  holds  good  where  a 
river,  the  boundary  line  of  two  states,  suddenly  changed  its 
course  and  cut  off  a  large  tract  of  country  from  one  state  and 
left  it  annexed  to  the  other  state  by  cutting  across  a  bend  in 
the  stream.26  And  it  was  said  in  that  case  that  the  middle  of 
the  channel  of  the  Missouri  river,  according  to  its  course  as 
it  flowed  prior  to  the  avulsion  of  July  5,  1867,  was  the  true 

ieMurry  v.  Sermon,  8  N.  Car.  56.  U.   S.  349,  42  L.   ed.  497,   18  Sup. 

202   Blk.    Com.   262.  Ct.  157;  Wallace  v.  Driver,  61  Ark. 

212Blk.  Com.  262.  429,  33  S.  W.  641,  31  L.  R.  A.  318; 

22St.   Louis   v.   Rutz,   138  U.   S.  Keokuk  &  Hamilton  Bridge  Co.  v. 

226,  34  L.  ed.  941,  ii  Sup.  Ct.  337-  People,  145  HI.  596,  34  N.  E.  482; 

232     Washburn     Real     Property  Rumsey  v.  New  York  Ry.  Co.,  133 

452.  N.  Y.  79,  30  N.  E.  654,  15  L.  R.  A. 

24Bracton  221.  618. 

25St.   Louis   v.   Rutz,   138  U.   S.  26Missouri  P.  R.  Co.  v.  Nebraska, 

226,  34  L.  ed.  941,  ii  Sup.  Ct.  337;  164  U.  S.  403,  4*  L.  ed  489,  25  Sup. 

St.    Anthony    Falls    Water    Power  Ct.  580. 
Co.  v.  St.  Paul  Water  Corns.   168 


235  RIPARIAN   RIGHTS  §    247 

boundary  between  the  states  of  Missouri  and  Nebraska.  And 
the  boundary  of  Kentucky  on  the  Ohio  river  extends  to  low- 
water  mark.27 

§  247.  Riparian  rights  in  waters  in  Pacific  coast  states. — 
As  is  well  known,  at  common  law,  the  riparian  owner  was 
entitled  to  the  use  of  substantially  the  entire  flow  of  a  stream 
as  it  passed  through  or  along  his  property.28  This  rule  has 
been  changed  in  practically  all  of  the  Pacific  coast  or  mining 
states.  The  change  was  made  of  necessity  by  reason  of  sur- 
rounding and  peculiar  circumstances  and  conditions  in  those 
states.  In  some  of  those  states,  statutes  have  been  enacted, 
which,  by  the  way,  are  but  a  re-affirmation  of  the  prior  de- 
cisions of  the  courts  of  the  jurisdiction  in  question.  This  was 
held  to  be  the  law  in  Colorado  prior  to  the  enactment  of  any 
statute.29  It  is  the  undoubted  rule  of  law  in  that  state  that 
the  riparian  proprietor  has  no  riparian  rights  in  the  waters  of 
the  streams  bordering  his  land  which  may  not  be  appropriated, 
either  prior  to  or  subsequent  to  issue  of  patent.  This  by  reason 
of  the  necessity  wrought  by  the  surrounding  circumstances. 
Such  waters  may  be  appropriated  by  others  than  riparian  own- 
ers for  the  purposes  of  irrigation  or  mining.30  In  the  case  last 
cited  the  court  at  page  447  says:  "We  conclude,  then,  that 
the  common-law  doctrine  giving  the  riparian  owner  the  right 
to  the  flow  of  water  in  its  natural  channel  upon  and  over  his 
land,  even  though  he  makes  no  beneficial  use  thereof,  is  inap- 
plicable to  Colorado.  Imperative  necessity,  unknown  to  the 
country  which  gave  it  birth,  compels  the  recognition  of 
another  doctrine  in  conflict  therewith.  And  we  hold  that,  in 
the  absence  of  existence  of  statutes  to  control,  the  first  appro- 
priator  of  water  from  a  natural  stream  for  a  beneficial  pur- 

27Henderson  Bridge  Co.  v.  Hen-  29Coffin  v.  Left  Hand  Ditch  Co., 

derson,  173  U.  S.  592,  43  L.  ed.  823,  6  Colo.  443- 

19  Sup.  Ct.  553.  30Coffin  v.  Left  Hand  Ditch  Co., 

28Coffin  v.  Left  Hand  Ditch  Co.,  6  Colo.  443- 
6  Colo.  443- 


§    247  SURVEYING   AND   BOUNDARIES  236 

pose,  has,  with  the  qualifications  contained  in  the  constitu- 
tion, a  prior  right  thereto,  to  the  extent  of  such  appropria- 
tion."31 It  was  subsequently  held  in  that  state  that  the  right 
acquired  by  prior  appropriation  is  not  in  any  way  dependent 
upon  the  locus  of  its  application  to  the  beneficial  use  designed.32 
And  it  is  said  that  a  valid  appropriation  of  the  waters  of  a 
stream,  to  the  exclusion  of  the  riparian  owner,  may  be  made 
for  the  purpose  of  irrigation,  though  the  lands  to  be  irrigated 
are  not  located  on  the  banks  or  in  the  neighborhood  of  the 
stream.33  And  we  find  the  highest  court  in  the  country  say- 
ing, that  every  state  has  the  power,  within  its  dominion,  to 
change  the  rule  of  the  common  law  with  reference  to  the  rights 
of  the  riparian  owner  to  the  continual  natural  flow  of  the 
stream,  and  permit  the  appropriation  of  the  water  for  such 
purposes  as  it  deems  wise.34  But  this  does  not  mean  that  all 
of  the  water  of  a  navigable  river  could  be  diverted  so  as  to 
destroy  navigation  in  derrogation  of  the  rights  of  all  of  the 
people.85  The  courts  of  Nevada  also  take  a  similar  stand  as 
to  the  rights  of  the  riparian  owner  to  the  stream  flowing 
along  his  lands  and  hold  that  the  common-law  doctrine  is  not 
applicable  to  Pacific  coast  states  and  that  prior  appropriation 
of  such  waters  gave  the  better  right  to  the  use  of  the  running 
waters  to  the  extent  in  quantity  and  quality  necessary  for  the 
uses  to  which  the  water  was  applied.36  While  the  courts  of 
those  states  do  not  say  so  yet  we  infer  that  other  riparian 
rights  remain  as  in  other  jurisdictions  unimpaired.  The 
necessity  for  water  for  irrigation  purposes  and  for  mining  to 
the  end  that  the  country  may  be  developed  and  cropped  and 

31Schilling  v.  Rominger,  4  Colo.  &  I.  Co.,  174  U.  S.  690,  43  L.  ed. 

ioo.  1136,   19  Sup.  Ct.,  770. 

32Hammond  v.  Rose,  11  Colo.  524,  35United  States  v.  Rio  Grande  D. 

19  Pac.  466,  7  Am.  St.  258.  &  I.  Co.,  174  U.  S.  690,  43  L.  ed. 

38Hammond    v.    Rose,    n    Colo.  1136,  19  Sup.  Ct.,  770. 

524,   19   Pac.   466,  7   Am.   St.  258,  36Jones  v.  Adams,  19  Nev.  78,  6 

34United  States  v.  Rio  Grande  D.  Pac.  442,  3  Am.  St.  788. 


237  RIPARIAN    RIGHTS  §    248 

other  parts  developed  for  the  mineral  wealth  has  brought  about 
the  change  of  the  old  rules  to  meet  local  conditions.  We 
have  deemed  it  advisable  to  mention  the  position  taken  by  the 
western  states  relative  to  this  matter,  not  that  it  properly  be- 
longs in  this  work,  but  as  a  matter  connected  with  riparian 
rights  generally. 

§  248.  Accretion  and  alluvium — Partition  of. — The  courts 
are  frequently  called  upon  to  partition  the  alluvial  deposits, 
flats,  dock  privileges,  made  land,  and  similar  rights.  The 
division  of  such  rights  among  riparian  owners  has  been  a 
fruitful  source  of  litigation  and  the  courts  have  promulgated 
certain  rules  for  the  partition  thereof,  which  have  been  ex- 
ceedingly useful  to  the  professions.  Among  such  rules  we 
find  the  following:  i.  Measure  the  ancient  bank  and  compute 
the  number  of  feet  owned  by  each  proprietor.  2.  Divide  the 
new  bank  into  as  many  equal  parts  as  there  were  feet  in  the 
old  bank  and  draw  lines  from  the  old  points  of  division  to  the 
new  ones.  In  applying  this  rule  to  the  old  shore  lines  the 
general  trend  of  the  line  should  be  taken  and  not  the  actual 
length,  where  the  old  line  has  deep  indentations  and  sharp 
projections.  The  points  of  measurement  should  be  to  the 
head-lands.  In  that  event  the  old  lines  should  be  equitably 
apportioned  to  different  owners  with  reference  to  the  available 
land  on  the  shore.37  In  running  the  partition  lines  between 
riparian  owners,  it  is  said,  they  should  be  extended  to  nav- 
igable waters,  giving  to  each  owner  the  same  proportional 
number  of  feet  along  the  new  shore  line  that  his  lot  line  bore 
to  the  old  shore  line.38 

37Deerfield    v.    Arms,     17    Pick  ter,  94  Va.  650,  27  S.  E.  493;  North- 

(Mass.)  41,  28  Am.  Dec.  276;  Kehr  ern  Pine  Land  Co.  v.  Bigelow,  84 

v.  Snyder,  114  111.  313,  2  N.  E.  68;  Wis.  157,  54  N.  W.  496,  21  L.  R. 

Johnson  v.  Jones,  79  Ind.   141,  17  A.  776. 

L.   ed.   117;   Peuker  v.  Canter,  62  38Jones  v.  Johnston,  18  How.  (U. 

Kans.  373,  63  Pac.  617;  Thornton  S.)    150,   15  L.  ed.  320;   Smith  v. 

v.  Smith,  Grant  &  Co.,  10  R.  I.  477,  Johnson,    71    Fed.    648 ;    Clark   v. 

14  Am.  Rep.  701 ;  Groner  v.  Fos-  Campau,  19  Mich.  325. 


§    249  SURVEYING  AND   BOUNDARIES  238 

§  249.  Right  to  accretion  may  rest  on  lands  of  another. — 
A  novel  case  is  that  of  Peuker  v.  Canter,  decided  by  the  Kan- 
sas court,  in  which  the  court  partitioned  alluvium  between  two 
adjoining  owners  of  lands  in  a  most  striking  manner.  We 
quote  from  the  opinion  of  the  court :  "Plaintiff  is  the  owner 
of  a  forty  acre  tract  of  land,  which,  at  the  time  of  the  gov- 
ernment survey,  in  1855,  and  presumably  when  the  patent 
was  issued,  was  separated  from  the  Missouri  river  on  the  west 
by  two  fractional  forty  acre  tracts  belonging  to  the  defendant. 
By  erosion  of  the  water  a  part  of  the  defendant's  land  was 
washed  away  until  the  river  reached  the  plaintiffs  said  tract 
of  land  and  by  eating  away  part  of  it  left  the  latter  a  shore  line 
of  about  seven  hundred  feet.  The  river  then  receded  forming 
alluvium  from  the  line  of  contact  with  plaintiff's  land  west- 
ward within  the  original  surveyed  lines  of  the  defendant's 
land  and  past  the  same  to  the  river.  This  alluvium  attached 
itself  to  what  was  left  of  defendant's  land.  Held  the  plaintiff 
was  entitled,  not  only  to  such  alluvium  as  formed  within  his 
original  lines  but  also  to  an  equitable  proportion  of  that  formed 
within  the  original  surveyed  lines  of  the  defendant's  land,  and 
beyond  the  river  bank."39  It  will  thus  be  seen  that  the  plain- 
tiff was  allowed  to  have  a  portion  of  the  alluvium  which  was 
formed  on  and  rested  on  the  land  originally  owned  by  the 
defendant.  In  fact,  as  we  read  the  case,  the  plaintiff  was  per- 
mitted to  follow  the  river  as  it  receded  and  to  retain  an  equi- 
table proportion  of  such  shore  line,  though  by  so  doing  pos- 
sessed land  which  rested  on  and  was  formed  on,  as  alluvium, 
the  former  lands  of  the  defendant.  Fig.  49.  Referring  to  the 
figure  plaintiff  owned  N.  W.  of  N.  E.  of  section  30;  defend- 
ant owned  lots  i  and  2,  section  30.  The  positions  of  the  stream 
in  the  years  1855,  1870,  and  in  1900,  are  shown  on  the  dia- 

39Peuker  v.  Canter,  62  Kans. 
373,  63  Pac.  617;  Payne  v.  Hall 
(Iowa),  185  N.  W.  912. 


RIPARIAN   RIGHTS 


§    249 


gram.  E  represents  the  tract  given  to  plaintiff  and  D  arid 
F  the  tracts  given  to  the  defendant.  It  will  be  seen  that  this 
allowance  takes  the  boundary  lines  beyond  the  lines  of  the 


Fiq.49 

section  as  it  was  originally  surveyed.  This  case  seems  ex- 
treme. It  is  striking  because  of  the  facts  in  the  case.  We 
doubt  the  soundness  of  the  decision  in  the  particular  case, 
though  sustained  by  a  long  line  of  authorities  both  in  England 
and  America.40  In  the  case  of  Welles  v.  Bailey,  the  Connecti- 
cut court  at  page  316  says :  "If  a  particular  tract  was  entirely 
shut  off  from  a  river  by  an  intervening  tract,  and  that  inter- 

40Welles  v.  Bailey,  55  Conn.  292, 
10  Atl.  565. 


§    249  SURVEYING  AND  BOUNDARIES  240 

vening  tract  should  be  gradually  washed  away  until  the  re- 
moter tract  was  reached  by  the  river,  the  latter  tract  would 
become  riparian  as  much  as  if  it  had  been  originally  such. 
This  follows  necessarily  from  the  ordinary  application  of  the 
principle.  All  original  lines  submerged  by  the  river  have 
ceased  to  exist;  the  river  is  itself  a  natural  boundary,  and 
every  changing  condition  of  the  river  in  relation  to  adjoining 
lands  is  treated  as  a  natural  relation  and  is  not  affected  in  any 
manner  by  the  relations  of  the  river  and  the  land  at  any  former 
period.  If,  after  washing  away  the  intervening  lot,  it  should 
encroach  upon  the  remote  lot  and  should  then  begin  to  change 
its  movements  in  the  other  direction,  gradually  restoring  what 
it  had  taken  from  the  remote  lot,  and  finally  all  that  it  had 
taken  from  the  intermediate  lot,  the  whole  by  the  law  of 
accretion  would  belong  to  the  remote  lot.  Having  become 
riparian,  it  has  all  riparian  rights.  This  general  principle  is 
recognized  by  all  of  the  text  writers  and  by  numerous  decisions 
of  the  English  and  American  courts.  The  river  boundary  is 
treated  in  all  cases  as  a  natural  boundary  and  the  rights  of  the 
parties  as  changing  with  the  change  of  its  bed."  This  case 
was  cited  approvingly  in  Peuker  v.  Canter.41  Other  cases 
holding  similarly  cited  therein.42 

The  case  of  Widdecombe  v.  Chiles,43  is  no  less  striking  than 
the  Peuker  case.  In  the,  Widdecombe  case  the  plaintiff  was 
the  owner  of  a  fractional  tract  situated  in  what  would  have 
been  the  north  half  of  section  22,  had  that  section  been  a  full 
one,  consisting  of  eight  and  sixty-eight  hundredths  acres.  The 

41Peuker  v.  Canter,  62  Kans.  373,  114  Mo.  232,  21  S.  W.  589;  Cooley 

63  Pac.  617;  Payne  v.  Hall  (Iowa),  v.  Golden,   117  Mo.  33,  23   S.  W. 

185  N.  W.  912.  100 ;    Benson   v.    Morrow,   61    Mo. 

42Jeffris    v.    East    Omaha    Land  345;  Buse  v.  Russell,  86  Mo.  209; 

Co.,  134  U.  S.  178,  33  L.  ed.  872,  Rees  v.  McDaniel,  115  Mo.  145,  21 

10  Sup.  Ct.  518;  Banks  v.  Ogden,  S.  W.  913;  Gifford  v.  Lord  Yar- 

2  Wall.  (U.  S.)  57;  New  Orleans  borough,  5  Bing,  163. 
v.  United  States,   10  Pet.   (U.   S.)          43Widdecombe  v.  Chiles,  173  Mo. 

662,  9  L.  ed.  573;  Naylor  v.  Cox,  195.  73  S.  W.  444,  61  L.  R.  A.  309. 


241 


RIPARIAN   RIGHTS 


§    249 


defendant  was  the  owner  of  the  south  half  of  section  22.  Re- 
ferring to  Fig.  50,  at  the  time  of  the  original  survey  in  1826, 
the  river's  course  was  as  shown  by  the  line  A-B-C.  It  grad- 


Fiq.50 

ually  changed  its  bed  by  wearing  away  the  soil  in  a  southerly 
direction  until  in  1853,  its  southern  bank  took  the  course 
A-E-C.  Then  the  bank  commenced  to  fill  in  gradually  by 
accretion  until  1896,  when  it  had  reached  the  course  A-F-C, 
adding  some  two  hundred  acres  to  the  original  fraction.  The 
plaintiff  claimed  this  property  as  an  accretion  to  his  fraction 
of  eight  and  twenty-six  hundredths  acres.  The  defendant 
claimed  the  land  as  an  accretion  to  his  half  section  by  reason 
of  his  attained  riparian  rights  in  1853.  It  will  be  seen  that 
the  fractional  part  of  the  section  was  entirely  washed  away 
and  the  south  half  of  the  section  became,  so  to  speak,  riparian. 


§  249 


SURVEYING   AND   BOUNDARIES 


242 


The  court  held  that  the  defendant  owned  the  "made  land" 
entirely,  thus  wiping  out  all  of  the  interest  of  the  plaintiff. 
Several  cases  are  cited  by  the  court.44  In  practically  all  of 
these  cases  the  argument  is  made  that  the  plaintiff  having  lost 
by  reliction  his  lands  and  the  defendant's  lands  having  become 
riparian  thereby  and  thereafter  increased  by  accretion,  the 
latter  would  be  entitled  to  all  of  said  accretion,  even  if  his 


lands  would  be  made  to  extend  over  the  former  bed  of  the 
river  and  the  entire  fraction  of  the  plaintiff.  In  his  valuable 
work  on  Waters  and  Water  Rights,  Farnham  criticises  this 
position  warmly  and  we  believe  rightly.45  He  also  mentions 


44Peuker  v.  Canter,  62  Kans.  373, 
63  Pac.  617;  Wallace  v.  Driver,  61 
Ark.  429,  33  S.  W.  641,  31  L.  R.  A. 
317;  Naylor  v.  Cox,  114  Mo.  232, 
21  S.  W.  589;  Welles  v.  Bailey,  55 


Conn.  292,  10  Atl.,  565;  Payne  v. 
Hall   (Iowa),  185  N.  W.  912. 

45Farnham  on  Waters  and  Water 
Rights,  Sec.  848. 


243  RIPARIAN    RIGHTS  §    249 

Peuker  v.  Canter,  and  Welles  v.  Bailey,  in  connection  with  this 
criticism.  He  states,  which  seems  to  be  the  case,  that  what 
the  court  says  in  the  Welles  case  about  this  principle  of  the 
law  is  mere  arbiter  and  in  no  way  the  statement  of  a  principle. 

A  similar  question  was  before  the  court  in  the  case  of 
Naylor  v.  Cox,46  in  which  the  same  principle  is  affirmed  under 
slightly  different  circumstances.  Referring  to  Fig.  51,  the 
plaintiff  was  the  owner  of  an  island  in  the  Missouri  river  and 
the  defendant  owned  the  shore  on  the  north  and  opposite  bank 
of  the  river.  The  line  A-D-C  represents  the  north  bank  of  the 
river  at  the  time  of  the  original  survey.  The  line  E-H-F 
represents  the  north  bank  of  the  island  at  the  same  time.  At 
that  time  and  for  many  years  thereafter  most  of  the  boating 
passed  through  north  of  the  island.  Later  the  river  between 
the  island  and  the  north  bank  began  to  fill  in  gradually  and 
after  many  years  the  north  shore  of  the  main  land  began  to 
wash  away  and  formed  a  new  shore  at  A-B-C.  The  north 
shore  of  the  island  gradually  grew  by  accretion  so  that  its 
north  bank  took  the  course  of  the  line  E-G-F.  It  was  held 
that  the  plaintiff  was  the  owner  of  all  of  the  accretion  to  the 
island  E  G  F  H  E,  even  where  it  overlapped  the  subsoil 
formerly  owned  by  the  defendant.  This  case  is  not  subject  to 
much  criticism  as  the  plaintiff's  land  was  originally  riparian 
and  he  would  be  entitled  to  all  accretions  to  the  original  shore 
on  general  principle.  Fig.  51. 

On  the  other  hand  we  find  the  same  court  departing  in  part 
from  this  principle  and  distinguishing  the  case  at  bar  from 
Naylor  v.  Cox.47  Referring  to  Fig.  52,  A-B  represents  the 
original  shore  at  the  time  of  the  government  survey.  A  C  B 
D  A  represents  the  land  washed  away  A  C  B  E  A  represents 
the  later  accretion  to  the  shore  A  C  B.  Plaintiff  owned  that 

46Naylor  v.  Cox,  114  Mo.  232,  21  24  S.  W.  172,  22  L.  R.  A.  591 ;  Nay- 
S.  W.  589.  lor  v.  Cox,  114  Mo.  232,  21  S.  W. 

*7Crandall  v.  Allen,  118  Mo.  403,      589. 


249 


SURVEYING   AND   BOUNDARIES 


244 


part  of  the  southeast  quarter  of  section  21  lying  south  of  the 
river.  The  defendant  owned  the  northwest  quarter  and  the 
west  half  of  the  northeast  quarter  of  section  28.  The  river 
washed  away  a  large  part  but  not  all  of  the  land  of  the  plain- 


Fiq.52 


tiff  and  a  part  of  the  north  side  of  the  land  of  the  defendant. 
Thereafter  the  river  gradually,  by  accretion,  added  to  the 
plaintiff's  and  defendant's  lands,  and  receded  or  changed  its 
bed  so  that  the  southerly  bank  was  farther  north  than  the 
original  bank.  The  defendant  claimed  to  own  the  accretion 
F  G  H  F,  and  the  plaintiff  also  claimed  such  accretion.  It 
was  held  that  all  such  accretion  belonged  to  the  plaintiff.  We 
believe  this  is  the  law.  Fig.  52. 

It  will  be  noted  that  we  have  quite  sharply  criticised  the 


245  RIPARIAN   RIGHTS  §    250 

Peuker  case.  Notwithstanding  all  we  have  said  in  that  respect 
we  must  confess  that  that  case  and  the  other  cases  holding 
similarly  are  well  sustained  by  the  authorities.  The  holdings 
in  those  cases  are  the  result  of  consistently  following  the 
principle  that  all  alluvial  formations,  unless  excepted  from  the 
grant,  belong  to  the  riparian  owner.  The  Peuker  case  is  cited 
approvingly  in  McBride  v.  Steinweder.48  In  the  latter  case 
the  court  holds  that  where  a  river  changes  its  course  by  slow 
and  imperceptible  processes  the  boundary  changes  with  that 
change,  and  the  center  of  the  main  channel  of  the  Missouri 
river  is  the  boundary  between  the  states  of  Kansas  and 
Missouri.  In  that  case  the  main  channel  of  the  river  had 
shifted  its  position  during  a  period  of  fifty  years,  two  miles 
toward  and  encroached  upon  the  Missouri  side.  A  large 
number  of  cases  is  cited  approvingly  by  that  court.49 

§  250.  State  boundary — Gradual  changes. — The  rule  ap- 
plied to  the  boundary  lines  of  private  parties  bordering  on 
rivers  is  also  applied  to  the  boundaries  between  different 
states.  If  a  river  gradually  changes  its  banks  the  boundary 
line  changes  with  it,  whether  it  is  between  individuals  or  be- 
tween states,  or  between  an  individual  and  a  state.  The  same 
rule  applies  to  boundaries  between  nations.50  In  the  latter  case 
the  court  lays  down  the  principle  that  a  navigable  river  divid- 
ing the  territory  of  two  states  and  which  changes  its  position 
by  gradual  and  imperceptible  encroachment  or  insensible  re- 
cession, so  that  the  process  by  which  the  removal  is  accom- 

48McBride     v.     Steinweden,     72  Ct.  157  J  Wood  v.  Fowler,  26  Kans. 

Kans.  508,  83  Pac.  822.  682,  40  Am.  Rep.  330;   Peuker   v. 

49Barney  v.  Keokuk,  94  U.  S.  324,  Canter,  62  Kans.  363,  63  Pac.  617 ; 

24  L.  ed.  224;  Jeffris  v.  East  Omaha  Perkins  v.  Adams,  132  Mo.  131,  33 

Land  Co.,  134  U.  S.  178,  33  L-  ed.  S.  W.  778;  Wood  v.  McAlpine,  85 

872,  10  Sup.  Ct.  518;  St.  Louis  v.  Kans.  657,   118  Pac.   1060;  Fowler 

Rutz,  138  U.  S.  226,  34  L.  ed.  941,  v.  Wood,  73  Kans.  511,  85  Pac.  763. 
ii  Sup.  Ct.  3375  St.  Anthony  Falls  50Fowler  v.  Wood,  73  Kans.  511, 

Water  Power  Co.  v.  Commissioners,  85  Pac.  763* 
168  U.  S.  349,  42  L.  ed.  497,  18  Sup. 


§    251  SURVEYING  AND  BOUNDARIES  246 

plished  can  not  be  detected  while  in  operation,  the  boundary 
follows  the  shifting  thread  of  the  stream.  And  this  is  reason- 
able. The  principle  has  been  repeatedly  affirmed.51  In  fact, 
the  authorities  quite  generally  agree  on  this  proposition. 

§  251.  State  boundary — Sudden  changes. — But  when  there 
has  been  a  sudden  change  in  the  boundary  line  between  two 
states  so  that  the  change  is  perceptible  the  rule  is  quite  differ- 
ent. In  that  event  the  boundary  line  remains  the  same  as 
before  the  change.52  And  the  rule  is  that  where  there  has  been 
a  sudden  change  in  a  stream,  the  boundary  between  two  states, 
and  it  has,  by  a  freshet  or  otherwise  changed  its  course,  and 
cut  a  new  channel  for  itself  the  boundary  between  the  states 
or  nations  does  not  change  but  remains  as  formerly  fixed. 
The  Supreme  Court  of  Kansas  in  the  case  cited  affirms  the 
principle  long  established  that  where  a  river  is  at  flood  stage 
and  an  ice-gorge  causes  a  sudden  change  and  violent  interrup- 
tion of  the  water,  whereby  the  lands  upon  one  side  are  visibly 
degraded  or  submerged  or  a  new  channel  is  cut,  the  state  boun- 
dary remains  stationary  at  its  former  location,  and  the  titles 
and  boundaries  of  private  owners  remain  unchanged.53  This 
principle  has  been  repeatedly  affirmed  as  will  be  evident  upon 
reading  some  of  the  many  authorities.54  To  determine  whether 
or  not  the  change  is  imperceptible  or  sudden  is  a  question  of 
proof  as  any  other  fact  is  proven.55  Of  course  a  court  would 
take  judicial  notice  of  the  boundaries  of  a  state.56  But  it  is 

51McBride     v.      Steinweden,     72  54McBride     v.      Steinweden,     72 

Kans.  508,  83  Pac.  822;  Peuker  v.  Kans.  508,  83  Pac.  822,  Peuker  v. 

Canter,  62  Kans.  363,  63  Pac.  617;  Canter,  62  Kans.  363,  63  Pac.  617; 

Nebraska  v.  Iowa,   143  U.   S.  359,  Nebraska  v.  Iowa,   143  U.  S.  359, 

36   L.   ed.    186,    12    Sup.    Ct.   396;  36   L.   ed.    186,    12    Sup.    Ct.   396; 

Welles    v.    Bailey,    55    Conn.    292,  Welles  v.  Bailey,  55  Conn.  292,  10 

10  Atl.  565.  Atl.  565. 

52Fowler  v.  Wood,  73  Kans.  511,  C59  Ency.  of  Ev.  400-1. 

85  Pac.  763.  667  Ency.  of  Ev.  910-12. 

53Fowler  v.  Wood,  73  Kans.  511, 
85  Pac.  763. 


247  RIPARIAN   RIGHTS  §    253 

doubtful  if  it  could  take  notice  of  sudden  or  imperceptible 
changes  or  the  extent  thereof. 

§  252.  Boundary  line  between  states  center  line  of  main 
channel. — Where  a  river  forms  the  boundary  line  between  two 
states,  unless  otherwise  provided  by  the  admission  act,  the 
line  of  division  thereof  would  be  the  center  of  the  main  chan- 
nel of  such  stream.57  This  may  or  may  not  be  the  center  of 
the  stream,  and  the  boundary  line  between  the  state  of  Wis- 
consin and  the  state  of  Minnesota  is  the  principal  navigable 
and  navigated  channel  of  the  Mississippi  river  and  such  boun- 
dary line  need  not  necessarily  be  in  the  middle  of  the  river 
but  may  be  very  near  one  side  of  the  river  at  places  and  very 
near  the  other  side  at  other  points.  It  is  evident  that  such  a 
line  is  a  changing  one  with  reference  to  the  middle  of  the 
stream.58  In  determining  the  boundary  line  in  such  cases  the 
term  Mississippi  river  means  the  broad  expanse  of  water ;  and 
the  numerous  bayous,  though  navigable,  are  not  included 
therein.59  And  it  has  been  held  that  long  acquiescence  of  a 
certain  boundary  line  between  two  states  by  such  states  may 
be  conclusive  on  such  states  as  to  its  location.60  So  too,  pri- 
vate parties  owning  lands  in  Wisconsin  along  such  stream 
own  to  the  center  of  the  main  channel  of  the  river,  subject  to 
the  public  interests  therein.61  But  in  Minnesota  the  private 
individual  would  own  to  high  water-mark  of  a  navigable 
stream  only.62 

§  253.  Unsurveyed  islands  in  navigable  rivers. — As  to  the 
title  to  unsurveyed  islands  in  navigable  rivers  the  authorities 
are  not  in  accord  in  the  several  states.  In  those  states  holding 
that  the  riparian  owner  owns  to  the  center  of  the  main  channel 

57Franzini  v.  Layland,  120  Wis.  60Franzini  v.  Layland,  120  Wis. 

72,  97  N.  W.  499.  72,  97  N.  W.  499. 

58Franzini  v.  Layland,  120  Wis.  61Franzini  v.  Layland,  120  Wis. 

72,  97  N.  W.  499.  72,  97  N.  W.  499. 

59Franzini  v.  Layland,  7""  Wis.  62Schurmeier  v.  St.  P'aul,  etc.,  Ry. 

72,  97  N.  W.  499-  Co.,  10  Minn.  82,  88  Am.  Dec.  59. 


§    254  SURVEYING  AND  BOUNDARIES  248 

of  the  stream,  subject  to  the  public  rights  in  such  stream  to 
navigate  the  same,  it  is  held  that  such  owner  owns  such  island 
unless  it  can  be  shown  that  there  was  a  mistake  in  the  original 
survey,  or  in  the  report  thereof,  and  that  such  island  was  unin- 
tentionally omitted  from  such  survey,  or  that  there  had  been  a 
fraud  perpetrated  on  the  government  in  making  such  original 
survey.63  In  such  cases  such  fraud  can  only  be  taken  advan- 
tage of  by  the  government,  and  if  it  sees  fit  to  overlook  it  the 
riparian  proprietor  will  own  such  island.64  But  in  Minnesota 
the  state  would  own  such  island,  if  in  a  navigable  stream,  that 
is,  in  such  cases  the  riparian  proprietor  would  not  own  beyond 
the  water's  edge.65  These  two  cases  represent  the  two  lines 
of  decisions  in  the  several  jurisdictions.  But  if  the  stream 
was  not  navigable  then  the  riparian  proprietor,  even  in  states 
like  Minnesota,  would  own  to  the  center  of  the  main  channel 
of  the  stream.66 

§  254.  Apportion  navigable  waters  to  owners  of  shore 
line. — The  courts  frequently  have  occasion  to  apportion,  among 
the  owners  of  the  shore  line,  the  line  of  navigable  waters 
fronting  on  such  lands.  The  law  applied  in  such  cases  is  akin 
to  the  rule  for  the  apportionment  of  alluvium.  The  case  of 
Northern  Pine  Land  Company  v.  Bigelow  is  such  a  case.67 
The  court  lays  down  a  rule  in  that  case,  which,  to  us,  seems 
sound.  We  can  do  no  better  than  to  quote  from  the  opinion 
of  the  court.  The  court  says:  "Measure  the  whole  shore 
line  of  the  cove  or  bay  and  the  line  of  navigable  water  in 
front  of  the  same  and  apportion  the  latter  among  the  owners 

63Franzini  v.  Layland,   120  Wis.          67Northern    Pine    Land    Co.    v. 

72,  97  N.  W.  499.  Bigelow,  84  Wis.    157,   54   N.   W. 

64Franzini  v.  Layland,   120  Wis.  496,   21    L.    R.    A.    776;    Menasha 

72,  97  N.  W.  499.  Wooden-Ware  Co.  v.   Lawson,  70 

65Lamprey  v.  State,  52  Minn.  181,  Wis.  600,  36  N.  W.  412;  Whitney 

53  N.  W.  1139.  v.  Detroit  Lumber  Co.,  78  Wis.  240, 

66Schurmeier  v.  St.  Paul  &  C.  Ry.  47  N.  W.  425. 
Co.,  10  Minn.  82,  88  Am.  Dec.  59. 


249 


RIPARIAN   RIGHTS 


§   254 


according  to  the  length  of  their  respective  holdings  on  the 
shore  line,  drawing  straight  lines  between  the  corresponding 
points  of  division  on  the  two  lines.  Actual  shore  and  not 
meandered  lines  should  be  measured,  but  when  there  are  deep 
indentations  or  sharp  projections  in  the  shore  its  general  trend 
only  should  be  followed,  and  so  also  in  the  measurement  of  the 
navigable  water  line.  The  points  between  which  the  lines  of 
navigable  waters  are  to  be  measured  should  be  determined  by 
lines  bisecting  the  angles  made  by  the  shore  lines  at  the  head 
lands  at  each  side  of  the  cove  or  bay  and  produced  from  such 
head  lands  to  the  line  of  navigable  water."  The  line  of  nav- 


Cheaucimeqon    Bern 


igability  will  be  the  line  connecting  these  two  points  and  run- 
ning along  the  line  of  actual  navigability,  and  the  distance 
will  be  the  measured  distance  between  the  two  points  taken 
along  that  line.  Fig.  53.  Referring  to  that  figure  the  follow- 
ing proportional  formula  will  give  the  location  of  the  point 
of  division  on  the  line  of  navigation  :  ABC  ;  DEF  :  :  BC  :  X 
(DE).  Again  referring  to  the  diagram  plaintiff  owned  tract 


§    255  SURVEYING   AND   BOUNDARIES  250 

H  and  defendant  owned  tract  G.  ABC  represents  the  shore 
line ;  DEF  represents  the  line  of  navigable  water ;  the  question 
before  the  court  was  where  should  the  dividing  line  between 
the  piers  be  located?  By  actual  measurement  DF  was  12,206 
feet;  EF  8,283  feet;  BE  2,472  feet;  DE  3,383  feet.  EF  and 
DE  were  obtained  by  computation.  The  court  held  the  line 
of  division  between  the  plaintiff's  and  defendant's  lands  was 
the  line  BE.  Justice  Orton  dissented  from  the  majority 
opinion.  Notwithstanding  the  dissenting  opinion  we  believe 
the  majority  opinion  is  sound  and  sustained  by  a  long  line  of 
decisions. 

§  255.  Shifting  water  line  the  boundary. — It  was  held  in  a 
Minnesota  case  that  where  a  government  lot  abuts  on  a  lake, 
the  shifting  water  line,  as  the  lake  recedes,  and  not  the  mean- 
der line,  is  the  boundary  of  the  lot.68  This  is  a  case  where  a 
lake  was  the  boundary  on  the  west  side  of  lots  2  and  3  of 
section  32,  of  a  certain  town  and  range,  said  lots  lying  on  the 
westerly  side  of  the  section.  A  considerable  part  of  the  west 
side  of  the  section  was  covered  by  the  lake  as  it  was  at  the 
time  of  the  original  survey.  The  lake  receded  over  200  rods — 
more  than  one-half  mile — and  into  section  31,  lying  west 
thereof.  It  was  held  that  the  riparian  owner  of  lots  2  and  3 
of  section  32,  would  hold  the  boundary  line  to  the  lake  in  its 
changed  condition.  Proof  was  given  to  show  that  the  meander 
line,  as  originally  run,  was  along  the  shore  of  the  lake,  and  it 
gradually  receded  as  the  lake  partially  dried  up;  that  in  wet 
seasons,  in  later  years,  the  lake  would  again  rise  and  over- 
flow a  part  of  its  former  bed.  Fig.  54  will  illustrate  the  sit- 
uation. Tract  in  dispute  BCDE,  all  within  the  boundaries  of 
section  31.  Owner  of  lots  2  and  3  in  section  32  sold  strip 
ABC  to  party  to  the  action,  who  claimed  the  so-called  al- 
luvium and  the  court  held  in  his  favor.  It  seems  to  us  that 

68Sherwin    v.    Bitzer,    97    Minn. 
252,  106  N.  W.  1046.  -.•- 


RIPARIAN    RIGHTS 


§    255 


the  holding  of  the  court  is  subject  to  criticism.  It  will  be  noted 
that  the  boundary  lines  were  held  to  be  CD  and  BE.  These 
lines  are  either  a  prolongation  of  the  lot  lines  or  parallel 
thereto.  In  determining  the  amount  of  new  shore  line  to  each 


Fiq.54 


owner  the  court  should  have  apportioned  the  same  among  the 
several  riparian  owners  according  to  the  number  of  feet  of 
the  old  shore  owned  by  each.  Hence  the  boundary  lines  would 
not,  in  that  event,  be  parallel,  but  would  converge  as  they  were 
extended  toward  the  new  shore  line.  This  rule  would  give 
each  riparian  owner  his  proportional  amount  of  the  new  shore 
and  an  equitable  part  of  the  alluvium.  The  method  pursued 


§    255  SURVEYING   AND   BOUNDARIES  252 

by  the  court  would  cut  off  several  riparian  owners  of  any 
interest  in  the  new  shore  line,  which,  to  our  mind,  is  con- 
trary to  equity  and  is  not  the  law.  We  are  of  the  opinion, 
however,  had  there  been  a  controversy  as  to  this  particular 
point,  in  which  all  riparian  owners  were  made  parties,  the 
court  would  have  made  a  different  division.  We  understand 
the  action  was  one  in  ejectment,  and  the  plaintiff  was  unable 
to  show  a  good  title  and,  therefore,  failed.  The  court  invoked 
the  familiar  rule  that  the  plaintiff,  in  an  action  of  ejectment, 
must  recover,  if  at  all,  on  the  strength  of  his  own  title,  and 
not  on  the  weakness  of  his  adversary.  Referring  to  Fig.  54, 
line  DE  represents  the  new  shore  line  of  the  lake  insofar  as  the 
case  was  concerned.  AB  represents  the  meander  line  in  front 
of  lots  2  and  3.  In  this  case  partition  should  have  been  made 
by  a  measurement  of  the  entire  old  shore  line  and  the  entire 
new  shore  line  and  then  proportionately  divide  the  new  line 
between  all  of  the  riparian  owners.69 

This  latter  rule  is  the  one  followed  by  the  Wisconsin  court 
in  Northern  Pine  Land  Co.  v.  Bigelow.70  The  Massachusetts 
courts  laid  down  this  rule  at  an  early  date  and  it  seems  to  have 
been  quite  generally  followed.71  The  meander  line  can  not 
be  considered  in  determining  the  location  of  the  shore  in  nav- 
igable waters  or  in  determining  the  rights  of  coterminous 
riparian  owners.72 

In  the  case  of  Sherwin  v.  Bitzer,  the  court  indulges  in  a 
lengthy  dicussion  of  meander  lines  and  the  rights  of  riparian 

69Ante  §  254.  Corp,  6  Pick.   (Mass.)   158;  Won- 

70Northern    Pine    Land    Co.    v.  son  v.  Wonson,  14  Allen    (Mass.) 

Bigelow,  84   Wis.    163,   54   N.   W.  71;  O'Donnell  v.  Kelsey,  10  N.  Y. 

496,  21   L.  R.  A.  776;  Thomas  v.  412;  Blodgett  &  D.  Lumber  Co.  v. 

Ashland   S.  &  I.  R.  &c.   Co.,   122  Peters,  87  Mich.  498,  49  N.  W.  917 ; 

Wis.  519,  100  N.  W.  993,  106  Am.  Johnston  v.  Jones,  I  Black  (U.  S.) 

St.  1000.  209. 

"Deerfield    v.    Arms,    17    Pick.  72Menasha  Wooden-Ware  Co.  v. 

(Mass.)    41;   Rust  v.   Boston  Mill  Lawson,  70  Wis.  600,  36  N.  W.  412. 


253  RIPARIAN   RIGHTS  §    255 

owners  to  accretion.73  Much  good  law  is  cited  but,  owing  to 
adverse  interests  not  being  represented,  the  court  did  not 
correctly  lay  down  the  division  lines  in  the  partition  of  the 
accretion  or,  what  is  the  same  thing,  the  land  formed  by  a 
drying  up  of  the  lake  in  question.  We  deem  it  wise  to  cite 
some  of  the  authorities  to  which  reference  is  made  by  the 
court  in  that  case.  We  find  the  cases  sustain  the  rule  that  a 
meander  line  is  not  a  boundary  line,  but  one  designed  to  point 
out  the  sinuosity  of  the  bank  or  shore,  as  a  means  of  ascertain- 
ing the  quantity  of  land  in  the  fraction  which  is  to  be  paid 
for  by  the  purchaser.74  But  there  is  an  exception  to  this  rule 
in  cases  of  fraud  or  mistake  in  running  the  meander  line.  In 
that  event  the  courts  have  sometimes  held  the  meander  line  to 
be  a  boundary  line.75  And  unless  the  case  falls  within  the 
exception,  the  actual  water  front  must  be  considered  the  boun- 
dary line.76  And  the  ownership  of  the  abutting  lots  to  the 
water  front  carries  with  it  the  ownership  of  the  land  which  has 
been  uncovered  by  the  recession  of  the  water.77  So  too,  lands 
formed  in  this  way  become  a  part  of  the  abutting  property, 
and  may  be  conveyed  with  it  or  by  separate  deed.78  And  we 
find  a  conveyance  of  the  original  lots  would  carry  all  of  the 
lands  to  the  actual  water  front,  unless  the  deed  contains  words 

73Sherwin    v.    Bitzer,    97    Minn.  76Schurmeier  v.  Ry.  Co.  10  Minn. 

252,  106  N.  W.  1046.  82,  88   Am.   Dec.   59;   Lamprey  v. 

7*Whitaker  v.  McBride,  197  U.  S.  State,  52  Minn.  181,  53  N.  W.  1139, 

510,  49  L.  ed.  857,  25  Sup.  Ct.  S3o;  18  L.  R.  A.  670,  38  Am.  St.  541; 

Hardin  v.  Jordan,   140  U.   S.  371,  Olson  v.  Thorndike,  76  Minn.  399, 

36   L.   ed.   428,    ii    Sup.    Ct.   808;  79  N.  W.  399;  Carr  v.  Moore,  119 

Home  v.  Smith,  159  U.  S.  40,  40  Iowa    152,   93   N.   W.   52,  97   Am. 

L.  ed.  68,   15   Sup.   Ct.  988;  Rail-  St.  292. 

way  Co.  v.  Schumeier,  7  Wall.  272,  "Webber  v.  Axtell,  94  Minn.  375, 

19  L.  ed  74-  102  N.  W.  915;  Banks  vs.  Ogden, 

"Security    Land    &    Exploration  2  Wall.  57,  17  L.  ed.  818. 

Co.  v.  Burns,  87  Minn.  97,  91  N.  W.  78De  Long  v.  Olsen,  63  Nebr.  327, 

304.  88  N.  W.  512. 


§    256  SURVEYING  AND  BOUNDARIES  254 

of  reservation.79  And  again  the  deed  carries  all  of  the  land  to 
the  shifting  water  front.80 

Again  referring  to  Fig.  54,  we  would  suggest  that  were  all 
of  the  riparian  proprietors,  owning  land  along  the  lake  in 
question,  represented  in  the  case  and  parties  thereto,  and  the 
court  applying  the  general  rule  in  the  division  of  the  accretion 
or  land  made  by  the  drying  up  of  the  lake,  such  court  would 
very  likely  divide  the  same  in  the  manner  shown  by  the  dotted 
lines  marked  m-n-o-p-q-r  and  s.  In  other  words  the  court 
would  draw  lines  from  the  intersection  of  the  several  boun- 
daries with  the  old  shore  line  to  the  center  of  the  lake.  This 
would  give  an  equitable  division  of  the  "made  land."  Were 
the  lake  a  long  one  instead  of  an  approximately  round  one 
still  another  method  would  be  adopted,  a  modification  of  the 
one  suggested.  That  would  call  for  running  a  line  through  the 
center  of  the  lake  approximately,  the  ends  of  such  lines  being 
within  the  lake  depending  on  circumstances.  The  division 
lines  would  then  be  run  to  such  center  line.  However,  a 
better  division  might  be  had  by  dividing  the  new  shore  among 
the  several  proprietors  in  proportion  to  the  length  of  the  old 
shore  line  held  by  them  severally,  as  suggested  in  the  fore  part 
of  this  section.  To  our  mind  this  would  be  the  better  rule.81 

§  256.  Non-navigable  lake  a  boundary. — The  authorities 
seem  quite  general  that  in  cases  of  non-navigable  lakes  or 
ponds  the  riparian  proprietors  take  to  the  center  of  the  lake  or 
pond.  And  it  is  held  in  Illinois  under  a  grant  of  land  bounded 
by  a  lake  or  pond,  which  is  not  tide-water  and  is  not  navigable, 
the  grantee  takes  to  the  center  of  the  lake  or  pond  ratably  with 
other  riparian  proprietors,  if  there  be  such ;  and  that  the  pro- 

79Illinois  Cent.  Ry.  Co.  v.  Illinois,  55  S.  W.  241;  Lamb  v.  Rickets,  n 

146  U.  S.  387,  36  L.  ed.  108,  13  Sup.  Ohio  311;  Kraut  v.  Crawford,   18 

Ct.  no;  Jeffris  v.  East  Omaha  Land  Iowa.  549,  87  Am.  Dec.  414. 

Co.  134  U.  S.  178,  10  Sup.  Ct.  518,  81Northern    Pine    Land    Co.    v. 

33  L.  ed.  872.  Bigelow,   84   Wis.    157,   54    N.   W. 

80Gorton   v.   Rice,    153    Mo.  676,  496,  21  L.  R.  A.  776. 


255  RIPARIAN   RIGHTS  §    258 

jections  of  a  strip  or  tongue  of  land  beyond  the  meander  line 
of  the  survey  is  entirely  consistent  with  the  water  of  the  pond 
or  lake  being  the  natural  boundary  of  the  granted  land,  which 
would  include  the  projections,  if  necessary,  to  reach  the  boun- 
dary.82 

§  257.  No  reservation  between  meander  line  and  water. — 
It  is  the  general  rule  that,  in  government  surveys,  there  is  not 
deemed  to  be  any  reservation  between  the  meander  line  and 
the  water.  And  it  is  the  rule  that  where  the  government  trans- 
fers the  land  adjacent  to  a  meander  line  it  parts  with  its  en- 
tire interest  to  the  water  line.  And  it  is  held  in  Iowa  that  in 
the  survey  of  government  lands  bounded  on  one  side  by  water, 
a  meander  line  is  not  a  boundary  line,  but  is  made  for  the  pur- 
pose of  ascertaining  the  quantity  of  land  subject  to  sale  in  the 
tract,  and  where  the  government  plat  and  field-notes  showed 
no  reservation  of  land  between  the  meander  line  and  water  line, 
the  title  of  the  patentee  extends  to  the  water.83  So  too,  the 
same  rule  is  sustained  in  other  courts,  and  it  is  held  in  Minne- 
sota that  a  patent  from  the  United  States  of  a  surveyed  frac- 
tional government  subdivision,  bounded  on  a  meandered  lake, 
and  although  the  meander  line  of  the  survey  be  found  not  to  be 
coincident  with  the  shore  line,  the  purchaser  is  not  estopped  to 
assert  that  his  title  extends  to  the  lake,  and  beyond  the  meander 
line.84 

§  258.  Takes  beyond  meander  line  and  quarter-line  to 
water. — The  same  rule  has  been  applied  by  the  Wisconsin  court 
in  an  extreme  case,  and  it  is  held  that  where  the  United  States 
conveyed  to  the  Territory  of  Wisconsin,  "fractional  section 
29"  in  a  certain  township ;  and  on  the  government  plat  of  the 
land  (to  which  the  description  in  the  deed  referred),  said  frac- 
tional section  along  its  whole  west  line  abuts  on  the  meander 

82Mitchell   v.    Smale,    140  U.    S.         84Everson   v.   Waseca,  44  Minn. 
406,  35  L.  ed.  442,  ii  Sup.  Ct.  819.      247,  46  N.  W.  405. 

83Ladd  v.   Osborne,   79  Iowa  93, 
44  N.  W.  235. 


§    259  SURVEYING  AND  BOUNDARIES  256 

lake,  (which  extends  west  beyond  what  would  be  the  west 
line  of  the  section,  were  it  a  full  one)  ;  and  the  whole  frac- 
tion (as  represented  on  the  plat)  is  within  what  would  be  the 
east  half  of  the  section,  if  a  full  one.  Said  fractional  section 
is  divided  on  said  plat  into  three  lots,  of  which  numbers  i  and 
2  include  the  portion  north  of  the  east  and  west-quarter  line 
and  number  3,  the  portion  south  of  it.  The  Territory  conveyed 
to  D.  C.  was  the  "N.  E.  fractional  quarter  of  section  29"  in 
said  township,  according  to  the  government  plat.  It  was  held 
that  D.  C.  had  a  right  to  believe  that  the  lake  was  his  western 
boundary  throughout  the  whole  length  of  that  boundary ;  that 
the  Territory  clearly  intended  to  convey  all  of  the  land  it  owned 
in  said  fractional  section  north  of  the  east  and  west-quarter 
line;  and  that  the  deed  was  sufficient  to  carry  out  that  inten- 
tion.85 

§  259.  Division  of  docking  privileges  on  meandered  and 
navigable  stream. — Frequent  contests  arise  as  to  the  rights  of 
riparian  owners  in  docking  privileges  on  a  meandered  and 
navigable  stream.  Such  was  the  condition  in  a  Wisconsin  case 
wherein  the  boundary  line  between  lots  i  and  2  of  a  certain 
section  runs  north  to  Fox  river.  At  this  point  the  meander 
line  is  some  distance  from  the  river.  A  controversy  arose 
between  the  owners  of  the  two  lots  as  to  where  the  boundary 
line  between  the  two  lots  would  run  in  its  course  to  the  "thread 
of  the  stream."  The  court  says,  "In  this  case  the  boundary 
line  between  two  adjoining  lots  as  they  extend  into  a  river,  is 
held  to  be  a  line  drawn  perpendicular  to  the  'thread  of  the 
stream'  from  the  point  where  the  government  line  between 
such  lots  strikes  the  actual  shore  line  (not  the  meander  line) 
of  the  river."86  See  Fig.  55.  OLP  represents  the  govern- 

85Shufeldt  v.  Spaulding,  37  Wis.  Peoria  v.   Central   Nat.  Bank,  224 

662.  111.  43,  79  N.  E.  296,  12  L.  R.  A. 

8»Menasha  Wooden-Ware  Co.  v.  (N.  S.)  687. 
Lawson,  70  Wis.  600,  36  N.  W.  412 ; 


257 


RIPARIAN    RIGHTS 


§    259 


ment  boundary  between  lots  i  and  2.     The  meander  line  is 
represented  at  RS.     Owner  of  lot  i  claimed  the  division  of 


Fiq.55 


Lotl 


Lota, 


dock  privileges  should  be  line  ON ;  the  owner  of  lot  2  claimed 
such  division  should  be  line  ML.  X  represents  the  disputed 
territory.  It  was  held  the  proper  division  line  was  line  ON. 


§    26O  SURVEYING   AND   BOUNDARIES  258 

But  see  Northern  Pine  Land  Co.  v.  Bigelow.87  In  the  latter 
case  the  court  held  the  boundary  line  to  be  properly  fixed  by  a 
proportionate  measurement  of  the  shore  line  and  the  line  of 
navigable  water.  Justice  Orton  dissented  from  the  majority 
and  contended  that  the  division  line  should  be  fixed  at  right 
angles  to  the  "thread  of  the  stream,"  as  in  the  Lawson  case 
ante.  But  it  must  be  remembered  that  the  two  cases  are  not 
alike.  In  the  Bigelow  case  there  was  no  "thread  of  the  stream" 
as  the  shore  line  was  on  a  bay  and  the  court  held  the  rule 
applied  should  be  the  same  as  for  a  division  of  accretion.88 

§  260.  Meaning  of  shore  and  shore  line. — Courts  are  fre- 
quently called  upon  to  construe  the  meaning  of  the  words 
"shore"  or  "shore  line"  as  used  in  a  transfer.  It  is  said  that 
the  words,  "shore"  and  "shore  line,"  when  used  in  rules  for 
the  division  of  accretion  upon  rivers,  mean  the  margin  of  the 
river  or  water  edge.89  In  this  case  the  court  cites  approvingly 
the  Lawson  case  ante.  High-water  mark  is  said  to  be  found 
by  ascertaining  where  the  presence  and  action  of  water  are  so 
usual  and  long  continued  in  ordinary  years  as  to  mark  upon  the 
soil  of  the  bed  of  the  stream  or  body  of  water  a  character  dis- 
tinct from  that  of  the  banks  in  respect  to  vegetation  and  the 
nature  of  the  soil.90  And  we  find  shore  defined  as  "Land  on 
the  margin  of  the  sea,  or  a  lake,  or  river.  That  space  of  land 
which  is  alternately  covered  and  left  dry  by  the  rising  and 
falling  of  the  tide."91 

§  261.  Division  where  stream  is  straight. — Not  only  the 
shape  of  the  shore  line  but  also  the  general  trend  of  the 
stream  must  be  taken  into  consideration  in  the  division  of 
shore  line  privileges  among  riparian  owners.  And  it  is  said 

"Northern    Pine    Land    Co.    v.      224  111.  43,  79  N.  E.  296,  12  L.  R.  A. 

Bigelow,   84   Wis.   157,   54   N.   W.      (N.  S.)  687. 

496,  21  L.  R.  A.  776.  »°St.  Louis   I.,  M.  &   C.   Ry.   v. 

88 Ante  §  254.  Ramsey,  53  Ark.  314,  13  S.  W.  931 , 

89Peoria   v.   Central   Nat.    Bank,      8  L.  R.  A.  559,  22  Am.  St.  195. 

91Words   &    Phrases,    "Shore." 


259 


RIPARIAN    RIGHTS 


§   26l 


that  where  the  stream  is  straight,  the  water  front  will  be 
bounded  by  lines  drawn  at  right  angles  with  the  thread  of  the 
stream,  protracted  until  they  reach  the  ends  of  the  shore  line. 
When  the  stream  curves  the  same  principle  applies,  and  the 
lines  running  from  the  shore  would  converge  or  separate,  ac- 
cording as  the  land  lay  within  or  without  the  curve.92  See 


-----    Thread 


Rq.56 


Fig-  56.  Line  AD  is  the  boundary  between  plaintiffs  and 
defendant's  properties  and  is  practically  at  right  angles  to  the 
shore  of  the  river  at  that  point.  BC  is  the  thread  of  the  river. 
AB  is  a  line  drawn  at  right  angles  to  the  thread  of  the  stream. 
It  was  held  that  AB  was  the  proper  dividing  line  between 
plaintiff's  and  defendant's  lands  as  they  have  rights  in  the 
bed  of  the  river.  It  also  fixes  dock  privileges.  In  other  words 
the  dividing  line  as  to  those  privileges  is  determined  by  run- 
ning a  line  from  a  point  where  the  division  line  of  their 

92Clark  v.  Campau,  19  Mich. 
325. 


§   262  SURVEYING  AND  BOUNDARIES  260 

properties  strikes  the  shore  line  to  the  thread  of  the  stream 
and  at  right  angles  thereto.93  And  it  is  said  that  the  boundary 
lines  of  water  lots  fronting  upon  a  river  in  such  a  manner 
that  their  sidelines  strike  the  shore  at  right  angles  with  the 
middle  thread  of  the  stream,  but  at  different  angles  with  the 
shore  at  that  point,  extend  into  the  river  at  right  angles  with 
the  thread  of  the  stream,  without  reference  to  the  shape  of  the 
shore.9*  And  the  boundary  between  adjoining  riparian  owners 
is  to  be  determined,  by  extending  a  line  from  the  boundary  at 
the  shore,  perpendicularly  to  the  general  course  of  the  stream 
opposite  that  point.95  Fig.  56. 

§  262.  Owner  of  bank,  owner  of  bed  of  stream  or  inlet  and 
of  beneficial  use  thereof. — It  is  the  rule  that  the  owner  of  a 
bank  of  a  stream  is  entitled  to  every  beneficial  use  of  the  soil 
under  the  stream  or  inlet,  which  can  be  exercised  with  a  due 
regard  to  the  public  easement,  and  any  trespass  which  inter- 
feres with  such  use,  like  an  obstruction  preventing  the  taking 
of  ice  gives  him  a  right  of  action  for  the  damage  thereby 
occasioned.96  This  rule  was  applied  to  Muskegon  lake  which 
is  separated  from  Lake  Michigan  by  a  narrow  channel  about 
60  rods  long  and  its  surface  rises  and  falls  with  the  surface  of 
the  latter  lake.  But  the  court  held  it  was  not  a  part  of  Lake 
Michigan  and  that  the  general  rule  applied.97  Referring  to 
Fig.  57,  the  court  held  that  the  low  land  lying  beyond  the 
meander  line,  as  shown  therein,  is  a  part  of  section  18.  This 
is  but  the  affirmance  of  the  well  established  principle  that  a 
meander  line  is  not  the  boundary  line.  And  it  is  said  that  the 
rule  of  riparian  proprietorship,  upon  the  river  Detroit,  as  laid 
down  in  Lorman  v.  Benson,  ante,  is  applicable  to  Lake 
Muskegon;  and  the  ownership  of  land  bordering  upon  the 
lake  carries  with  it  the  ownership  of  the  land  under  the  shal- 

98    Clark  v.    Campau,    19   Mich.  95Clark  v.  Campau,  19  Mich.  325. 

325.  96Lorman  v.  Benson,  8  Mich.  18; 

9*Bay  City  Gas.  Co.  v.  Industrial  Ryan  v.  Brown,  18  Mich.  196. 

Works,  28  Mich.  182.  97Rice  v.  Ruddiman,  10  Mich.  125. 


26l 


RIPARIAN  RIGHTS 


§    263 


low  waters  so  far  out  as  is  susceptible  of  beneficial  private 
use,  but  subordinate  to  the  paramount  public  rights  of  nav- 
igation, and  the  other  public  rights  incident  thereto.98 
Frac.  Sec   18 

\der   J-lTC_ 


§  263.  Rule  for  division  of  shore  on  rivers  and  lakes  dif- 
fer.— It  will  be  seen  by  an  examination  of  the  cases,  that  the 
courts  have  applied  a  different  rule  for  the  division  of  the 
rights  of  riparian  owners  to  the  shores  of  lakes  and  rivers. 
Much  of  the  apparent  confusion  of  the  authorities  can  be  traced 
to  this  fact.  A  river  has  a  "thread  of  the  stream"  but  no  such 
term  is  applied  to  a  lake,  the  sea  or  a  large  pond."  In  this 
case  the  court  says :  "Controversies  arising  concerning 
riparian  rights  upon  waters  having  no  middle  thread  properly 
so-called,  like  the  open  sea,  or  a  bay  or  other  similar  body  of 
water,  where  the  shore  is  the  only  tangible  element  of  computa- 
tion or  measurement,  have  no  bearing  on  the  case  of  rivers." 
In  those  states  where  the  riparian  proprietor  owns  to  the 
thread  of  navigable  streams  subject  to  the  rights  of  the  pub- 
lic to  pass  over  and  along  said  stream,  it  is  the  rule  that  the 
owner  of  the  shore  of  such  river  owns  the  submerged  lands 
connected  therewith  to  the  thread  of  the  stream.1  And  the 


98Rice  v.  Ruddiman,  10  Mich.  125. 
"Bay  City  Gas  Co.  v.  Industrial 
Works,  28  Mich.  182. 


iCampau   Realty   Co.   v.   Detroit, 
162  Mich.  243,  127  N.  W.  365,  139 

Am.  St.  555. 


§    264  SURVEYING  AND  BOUNDARIES  262 

owner  of  the  land  not  only  owns  the  submerged  land  but  also 
the  ice  covering  the  surface  of  the  water  over  the  submerged 
lands  and  the  right  to  trap  rats  thereon.2 

§  264.  Riparian  owner  entitled  to  island  in  stream. — It  is 
generally  held  in  those  cases  where  an  island  is  found  in  a 
stream  adjacent  to  the  shore,  during  dry  seasons,  but  covered 
in  times  of  freshets,  and  which  island  was  never  surveyed  by 
the  government,  that  it  belongs  to  the  riparian  owner.3  And  this 
may  be  the  case  in  those  states,  along  navigable  streams,  where 
the  riparian  owner  does  not  own  the  bed  of  such  streams,  as 
will  be  seen  by  an  examination  of  the  case  last  cited.  In  that 
case,  briefly,  the  facts  were :  Party  owned  lot  i  in  a  fractional 
section  in  the  state  of  Minnesota,  bordering  on  the  Mississippi 
river.  Opposite  his  lot  at  certain  seasons  of  the  year,  and 
separated  from  the  main  shore  by  a  slough  28  feet  wide,  was 
an  island  containing  two  and  seventy-eight  hundredths  acres. 
This  island  was  some  four  feet  lower  than  the  main  land  and 
was  entirely  covered  during  freshets.  During  low  stages  no 
water  flowed  in  the  slough  separating  the  island  from  the 
main  land  but  water  stood  in  this  slough  in  pools.  At  medium 
stages  of  water  it  flowed  through  the  slough,  making  an  island 
of  the  parcel;  and,  when  at  high-water,  the  parcel  was  sub- 
merged; the  whole  place  having  previous  to  the  controversy, 
been  laid  out  as  a  city,  and  the  municipal  authorities  having 
graded  and  filled  up  the  place  to  the  river  edge  of  the  parcel. 
It  was  held  that  the  riparian  owner  took  the  island.  This 
holding  would  not  be  unusual  in  those  states  where  it  is 
uniformly  held  that  the  riparian  proprietor  owns  to  the  center 
of  the  stream.4  See  Fig.  58  for  an  illustration  of  the  subject 
of  the  section. 

§  265.     Riparian  owner  has  free  access  to  navigable  part 

2Johnson  v.  Burghorn,  212  Mich.      Wall.  (U.  S.)  272,  19  L.  ed.  74. 
19,   179  N.  W.  225.  4Ante  §  169. 

3Railway    Co.    v.     Schurmeir,    7 


RIPARIAN   RIGHTS 


§    266 


of  stream. — It  is  the  universal  rule,  unless  there  is  an  excep- 
tion or  reservation  in  the  conveyance,  that  the  riparian  owner 


Rq.58 


is  entitled  to  free  access  to  the  line  of  navigation.  It  has  been 
held  by  the  Federal  Supreme  Court,  in  a  case  that  arose  in 
Wisconsin,  that  the  owner  of  the  shore  has  the  right  to  free 
access  to  the  navigable  part  of  the  stream  and  may  build  docks, 
piers  and  approaches,  either  for  use  of  himself  or  the  public. 
He  must  not  interfere  with  the  public  rights  or  obstruct  navi- 
gation.5 See  Fig.  59.  Yates  owned  lot  i  of  the  plat  of  the 
city  of  Milwaukee.  He  built  a  pier  as  indicated  in  the  diagram. 
This  pier  extended  to  the  line  of  navigation  of  the  river,  A-B. 
He  used  this  pier  privately  and  also  in  the  interest  of  the 
public.  It  was  held  that  he  had  such  right  and  that  the  dock 
would  not  be  abated  as  a  nuisance. 

§  266.    Title  by  accretion  may  be  lost. — While  accretion  is 


5Yates    v.    Milwaukee,    10   Wall. 
(U.  S.)  497,  19  L.  ed.  984. 


§    266 


SURVEYING  AND  BOUNDARIES 


264 


1 

T 
A 

Menormnee  i 
River  .-i 

CD 

8 

7 

6 

5 

4 

3 

2 

i 

T-Ul.- 

*  * 

X" 

<ovic|cipjon 

River 


Rq.59 


the  addition  to  a  shore  by  slow  and  imperceptible  means  yet  a 
riparian  proprietor  who  has  gained  title  to  "made  lands"  by 
that  means  may  also  lose  it.6  And  we  find  that  while  the 
title  by  accretion  is  liable  to  be  lost  by  erosion  or  submergence, 
the  erosion  to  effect  that  result  must  be  accompanied  by  a 
transportation  of  the  land  beyond  the  owner's  boundary,  and 
it  may  be  returned  by  accretion,  in  which  case  the  ownership, 
temporarily  lost,  may  be  regained;  and  so,  land  lost  by  sub- 
mergence, may  be  regained  by  reliction,  unless  the  submergence 
has  been  followed  by  such  a  lapse  of  time  as  precludes  the 
identity  of  the  land  from  being  established.7 

6Mulry  v.  Norton,  100  N.  Y.  424.          7Mulry  v.  Norton,  100  N.  Y.  424. 


265  RIPARIAN    RIGHTS  §    268 

§  267.     Regaining  land  lost  by  erosion  or  submergence. — 

It  is  not  uncommon  for  a  riparian  proprietor,  who  has  lost 
land  by  erosion  or  submergence  to  regain  it  by  the  same 
means.  To  regain  such  land  the  growth  must  be  slow  and  im- 
perceptible and  we  find  that,  if,  after  the  submergence,  the 
water  disappears  from  the  land,  either  by  its  gradual  retire- 
ment or  the  elevation  of  the  land  by  natural  or  artificial  means, 
the  proprietorship  returns  to  the  original  owner.  And  no  lapse 
of  time  during  which  the  submergence  has  continued  bars  the 
right  of  the  owner  to  enter  upon  the  land  reclaimed  and  assert 
his  proprietorship  when  the  identity  can  be  established  by 
reasonable  marks,  or  by  situation,  extent  of  quantity  and 
boundary  on  the  firm  land.8  And  it  has  been  held  that  if  an 
island  forms  upon  the  land  while  submerged  it  belongs  to  the 
original  owner.9  In  the  latter  case  the  facts  were,  briefly,  that 
in  1865,  the  plaintiff's  predecessors  in  interest  received  a  trans- 
fer of  land  situated  on  Long  Island,  from  the  Indians ;  that  prior 
to  1869,  a  large  part  of  this  tract  was  washed  away  and  became 
submerged  and  so  remained  for  many  years;  that  thereafter 
that  part  which  had  been  washed  away,  by  slow  process,  be- 
came filled  up  and  bars  of  sand  formed  within  the  original 
boundaries.  It  was  held  that  the  plaintiff  was  the  owner  of 
land  so  formed. 

§  268.  Division  of  accretion  where  shore  line  approxi- 
mately straight. — As  we  have  seen  every  riparian  proprietor, 
unless  restricted  in  his  grant,  is  entitled  to  frontage  on  the 
new  shore  proportional  to  his  old  shore  line.10  The  shape  of 
the  shore  line  has  much  to  do  with  the  manner  of  the  division 
of  those  rights.  The  surveyor  and  the  court  will  consider 
whether  the  shore  line  be  straight  or  curved,  and  if  curved, 
whether  that  curve  be  convex  or  concave  with  reference  to  the 
body  of  water.  It  is  the  general  rule  that  where  the  general 
course  of  the  shore  or  river  bank  is  approximate  to  a  straight 

8Mulry  v.  Norton,  100  N.  Y.  424.         10Ante  §  248;  Gould  on  Waters, 
9Mulry  v.  Norton,  100  N.  Y.  424.       (3rd  ed.)    162. 


§  268 


SURVEYING   AND   BOUNDARIES 


266 


line,  alluvial  deposits,  as  well  as  flats,  are  divided  among  the 
conterminous  proprietors  by  lines  perpendicular  to  the  general 


Fiq.60 

course  of  the  original  bank  or  of  the  original  high-water  mark 
of  the  shore.11     Referring  to  Fig.  60,  the  original  bank  is 

"Gould    on    Waters,    (3rd    ed.) 
163. 


26; 


RIPARIAN   RIGHTS 


§    269 


represented  by  the  line  D-E.  A-C  represents  the  boundary 
on  land  between  lots  i  and  2.  A-B  would  represent  the  divi- 
sion of  the  flats  or  accretion  between  the  two  lots. 

§  269.  Division  where  shore  line  curves.— Where  the 
shore  line  curves  or  bends  a  different  rule  prevails,  naturally, 
and  two  objects  are  to  be  kept  in  view ;  namely  to  give  to  each 
proprietor  a  fair  share  of  the  land,  and  to  secure  to  him  con- 


Fiq.61 


venient  access  to  the  water  from  all  parts  of  his  land  by  giving 
him  a  share  of  the  outward  line  proportioned  to  the  line  of 
high-water  mark  as  originally  owned  by  him.  In  such  cases 
the  general  rule  is  to  measure  the  whole  extent  of  high-water 
mark  or  of  the  ancient  line  along  the  shore ;  to  then  divide  the 
line  of  low-water  mark,  or,  in  the  case  of  avulsion,  the  newly 


§    269 


SURVEYING  AND  BOUNDARIES 


268 


formed  water-line,  into  equal  parts,  corresponding  in  number 
to  the  feet  ascertained  by  the  above  measurement;  and  after 
apportioning  to  such  proprietor  as  many  of  these  parts  as  he 
owned  feet  or  rods  on  the  old  line,  to  draw  lines  from  the 
original  termination  of  the  boundaries  of  the  upland  to  the 
points  of  division  of  the  newly  formed  line,  in  the  case  of 
flats,  on  the  line  of  low-water  mark.12  Figs.  61  and  62.  These 


diagrams  represent  the  situation  in  convex  and  concave  shore 
lines  and  show  the  manner  of  the  division  of  the  flats  in  such 
cases.  The  method  of  dividing  the  shore  line  is  the  same. 
Measure  A-B,  the  old  shore  line,  also  C-D,  the  new  shore  line, 
and  give  to  each  lot  proportionally  that  part  of  the  new  shore 
line  as  such  lot  bore  to  the  old  shore  line  AB.  The  line  of 

"Gould  on  Waters,  (3rd  ed.) 
163-4;  Deerfield  v.  Arms,  17  Pick. 
(Mass.)  41. 


269  RIPARIAN   RIGHTS  §    270 

division  will  converge  or  diverge  as  the  new  line  is  less  or 
greater  than  the  old  line. 

§  270.  Division  of  cove  privileges  on  land  bordering  on 
sea. — The  division  of  cove  privileges  among  riparian  owners 
of  shore  along  the  sea  or  a  large  lake  is  but  a  modification  of 
the  principle  laid  down  in  the  preceding  section.  It  has  been 
held  that  every  proprietor  of  upland  bordering  on  the  sea  is 
entitled,  under  the  colony  ordinance  of  1641,  to  the  flats  in 
front  of  his  land  to  low-water  mark,  or  to  the  distance  of  100 
rods,  where  the  tide  ebbs  beyond  that  distance,  of  equal  width 
throughout,  with  his  lot  at  high-water  mark  wherever  this  is 
practicable.  The  division  of  flats  among  the  owners  of  the 
upland  bounding  on  a  cove  is  to  be  made,  wherever  the  form 
of  the  cove  will  allow  of  it,  by  running  a  base  line  across  the 
mouth  of  the  cove,  and  drawing  parallel  lines  at  right  angles 
with  this  line,  as  a  base,  from  the  ends  of  the  division  lines  of 
the  upland  to  low-water  mark.13  This  rule  is  sometimes  fol- 
lowed where  the  shore  line  is  elongated  by  deep  indentations 
and  sharp  projections.  The  courts  will  seek  to  make  an  equit- 
able distribution  of  the  new  shore  line,  the  flats,  the  navigable 
water,  or  the  accretion,  as  the  case  may  be,  between  the  own- 
ers of  the  uplands  or  original  shore.  Fig.  63.  This  diagram 
represents  a  part  of  the  city  of  Boston.  The  line  C-D  was 
involved  in  the  case  of  Gray  v.  Deluce,  ante.  The  points  A 
and  B  are  the  high-water  marks  of  the  two  projections  of  the 
shore  bounding  Boston  harbor  —  the  so-called  headlands.  A-B 
is  the  base  line  connecting  such  points.  Gray  owned  lot  I  and 
Deluce  owned  lot  2.  The  court  held  C-D,  which  is  perpendicu- 
lar to  A-B,  to  be  the  boundary  line  between  those  lots,  as 
extended  over  the  flats  or  cove.  The  same  rule  would  be 
followed  in  fixing  the  boundary  lines  between  piers  extending 

13Gray  v.  Deluce,  5  Cush.  (Mass.) 
9;  Gould  on  Waters,  (3rd  ed.) 
164. 


§  271 


SURVEYING  AND  BOUNDARIES 


270 


to  navigable  waters.    But  we  find  a  slight  modification  of  this 
rule  in  a  Wisconsin  case.14 


Sea 


Rq.63 


§  271.  General  rule  of  division  of  accretion  must  give  way 
under  special  circumstances. — It  will  not  do  for  the  surveyor 
or  court  to  proceed  to  follow  the  general  rule  for  a  division  of 
flats  or  accretion  under  all  circumstances.  All  of  the  sur- 
rounding circumstances  must  be  considered  in  applying  any 
rule  of  division.  In  an  Illinois  case  the  plaintiff  owned  a  lot 
indicated  on  the  plat.  The  defendant  city  owned,  by  dedica- 
tion, a  street  indicated  thereon.  When  the  street  was  orig- 
inally platted  the  surveyor  marked  on  the  river  in  line  with  the 
street  the  word,  "Bridge."  It  was  held  that  this  was  a  dedica- 
tion by  the  owner  of  the  riparian  rights  to  the  soil  under 
the  river  in  a  direct  line  with  the  street.  The  streets  wore 

"Northern  Pine  Land  Co.  v. 
Bigelow,  84  Wis.  157,  54  N.  W. 
496,  21  L.  R.  A.  776;  Ante  §  254. 


271 


RIPARIAN    RIGHTS 


§    271 


platted  sixty-six  feet  wide.  After  the  land  was  platted  the 
river  receded  some  seventy  feet.  A  contest  arose  between  the 
city  and  the  plaintiff  as  to  where  the  division  line  should  be 
run  as  between  the  plaintiff  and  the  street  in  giving  to  plaintiff 
his  rightful  proportion  of  the  alluvium.  Plaintiff  claimed  the 
line  of  division  should  run  at  right  angles  to  the  thread  of  the 


stream  or  A-B.  The  city  claimed,  owing  to  the  dedication  by 
the  plat,  that  the  line  should  be  a  prolongation  of  the  side  of 
the  street,  as  A-C.  It  was  held  that  as  to  where  it  should  be 
located  is  a  question  of  fact  and  that  the  general  rule  as  to 
boundaries  in  the  division  of  flats  or  alluvium  must  give  way 
in  special  circumstances,  and  that  the  line  A-C  should  be  the 


§    272  SURVEYING  AND  BOUNDARIES  272 

division  line.  The  fact  of  the  dedication  of  the  street  by  the 
proprietor  of  the  plat  was  one  of  the  moving  factors  in  this 
case.15  Fig.  64.  The  diagram  will  show  the  situation  of  the 
property.  The  ruling  is  doubtless  correct  as  a  matter  of  public 
necessity.  The  dedication  was,  in  effect,  the  transfer  by  metes 
and  bounds  of  the  bed  of  the  stream  to  the  public  and  hence 
an  individual  thereafter  would  not  be  permitted  to  enforce  the 
general  rule  as  to  the  division  of  "flats"  or  accretion. 

§  272.  Line  of  division  of  flats  to  run  at  right  angles  to 
low-water  mark. — It  has  been  decided  in  a  Kentucky  case  that 
the  line  of  division  of  flats  adjacent  to  the  Ohio  river  should 
run  at  right  angles  to  low-water  mark.16  The  same  rule  has 
been  applied  by  the  Pennsylvania  court.17  This  rule  is  applied 
even  though  the  division  between  the  owners  of  the  upland  is 
oblique  to  the  line  of  low-water  mark.  In  the  case  cited  above 
the  line  of  survey  was  by  an  oblique  course  "to  a  point  on  the 
river,"  etc.  And  we  find:  "To  ascertain  the  front  of  the 
riparian  river  at  low-water  mark,  the  course  from  the  post  (on 
the  bank)  is  to  be  run  at  right  angles  with  that  line,  and  not 
to  continue  in  the  oblique  directions  by  which  it  reached  the 
post."  Fig.  65.  Referring  to  the  diagram  the  line  BG  is 
the  boundary  line  between  the  parties,  B  being  the  point  re- 
ferred to  above  as  "on  the  river."  One  party  claimed  the  di- 
vision line  to  be  a  prolongation  of  the  oblique  line  as  BH. 
The  other  party  claimed  the  division  line  of  the  "flats"  should 
be  BF.  The  court  so  held.  It  is  to  be  observed  that  the  general 
rule  is  to  run  such  division  line  at  right  angles  with  the 
thread  of  the  stream.  The  rule  promulgated  in  the  Pennsyl- 
vania case  is  a  modification  of  that  rule. 

§  273.  Lake  dried  up — Riparian  entryman's  rights. — What 
are  the  rights  in  the  dried  up  bed  of  a  nonnavigable  lake, 

"Elgin  v.  Beckwith,  119  111.  367,  16Miller  v.  Hepburn,  8  Bush. 
10  N.  E.  55a  (Ky.)  326. 

"Wood   v.   Appal   63    Pa.    210. 


273 


RIPARIAN    RIGHTS 


§    273 


which  an  entryman  of  a  timber  claim,  before  patent  issues, 
may  lawfully  assert  against  a  third  party,  squatting  on  such 
dried  up  bed  or  accretion?  This  question  was  involved  in  a 
case  in  South  Dakota.  The  action  instituted  was  by  the  entry- 
man,  before  patent,  against  another  party  who  had  squatted 


Lot 


\Top   of 

,  Bank  J 

i 

I         < 

, 

J 

1       ' 

t 

f 

I/ 

i 

1 

/f 

•'  H  ; 

i 

x  i  .  oL 

Time-,' 

c          1 

^§e£lt  low  Water  Mark  J 

e          " 


Ohio 


Fiq.65 


on  the  dried  up  bed  of  a  lake.  The  latter  party,  of  course, 
had  no  title.  Neither  had  the  entryman  received  a  patent  of 
the  shore  line  of  the  lake.  He  was,  however,  complying  with 
the  laws  of  Congress  and  of  the  land  department  in  good 
faith  and  hence  entitled  to  whatever  rights  existed  to  a  shore 


§    273  SURVEYING  AND  BOUNDARIES  274 

owner.18  And  it  is  said  that,  "It  has  been  the  practice  of  the 
government  from  its  origin,  disposing  of  the  public  lands,  to 
measure  the  price  to  be  paid  for  them  by  the  quantity  of  up- 
land granted,  no  charge  being  made  for  the  lands  under  the 
bed  of  the  stream  or  other  body  of  water."19  It  is  settled  to  be 
the  course  of  the  common  law  and  of  the  latest  decisions  of  the 
land  department  that  a  grantee  of  land  contiguous  to  a  lake  or 
pond,  not  navigable,  takes  to  the  center  thereof,  ratably  with 
other  riparian  owners,  if  there  be  such,  and  a  timber  culture 
entryman,  who  has  filed  upon  a  lot  bordering  upon  such  lake 
or  pond,  received,  upon  a  full  compliance  with  the  law,  a 
patent  from  the  government  which  conveys  to  him,  a  fee  sim- 
ple title  to  such  lot,  together  with  any  accretion  or  reliction 
to  the  center  of  the  lake,  occasioned  by  the  gradual  recession 
or  drying  up  of  the  water  therein,  after  the  date  of  his  filing.20 
The  court  in  that  case  speaking  through  Fuller,  J.  say :  "When 
land  is  bounded  by  a  lake  or  pond,  the  water,  equally  as  in  the 
case  of  a  river,  is  appurtenant  to  it.  It  constitutes  one  of  the 
advantages  of  its  situation,  and  a  material  part  of  its  value, 
and  enters  largely  into  the  consideration  for  acquiring  it. 
Hence  the  presumption  is  that  a  grant  of  land  thus  bounded 
is  intended  to  include  the  contiguous  land  covered  by  water. 
Besides  a  lake  or  pond,  like  a  river,  is  a  concrete  object,  a  unit ; 
and  when  named  as  a  boundary  the  natural  inference  is  that  the 
middle  line  of  it  is  intended, — that  is  the  line  equidistant  from 
the  land  on  either  side."21  Referring  to  Fig.  66,  the  diagram 

18Application   of    Hoel,    13    Dec.  364,  61  N.  W.  479;  modified  8  S. 

Dep.  Int.  588;  Inst.  of  Dept.  Int.  Dak.  220,  66  N.  W.  313. 

to  Com.  Land  Office,  14  Dec.  Dep.  21Olson  v.  Huntamer,  6  S.  Dak. 

Int.     119;     Black's     Pom.     Water  482,     61     N.     W.    479.    Also     see 

Rights,  36.  Mitchell  v.   Smale,   140  U.   S.  406, 

19Hardin   v.   Jordan,    140  U.    S.  35  L.  ed.  442,  n  Sup.  Ct.  819;  Gouv- 

372,  35  L.  ed.  428,  ii  Sup.  Ct.  808-  erneur  v.  National  Ice  Co.,  134  N. 

838.  Y.  355,  31  N.  E.  865. 

20Olson  v.  Huntamer,  6  S.  Dak. 


275 


RIPARIAN    RIGHTS 


§  273 


represents  a  section  of  land.  Plaintiff  was  in  possession  of  lot 
I  Sec.  3,  twn.  104,  rge.  51  west,  as  a  timber  culture  entryman. 
At  the  time  of  the  original  survey  by  the  government  and  at 


Fiq.66 


the  time  of  the  entry  by  the  plaintiff  the  shore  of  the  lake  and 
the  meander  line  was  as  is  represented  on  the  diagram  by 
A-B-C-D.  Subsequently  the  lake  gradually  dried  up.  A  con- 
troversy arose  between  plaintiff,  the  entryman  of  lot  i  and 
another  with  reference  to  that  part  of  the  dried  up  bed  of  lake 


§    273  SURVEYING   AND   BOUNDARIES  276 

lying  between  the  meander  line  and  the  center  of  the  lake. 
It  was  held  that  the  plaintiff  would  own  to  the  water's  edge 
or,  if  the  lake  was  dried  up,  to  the  center  line  thereof.  It 
was  also  held  that  the  western  boundary  line  of  plaintiff's 
lands  would  be  represented  by  the  line  E-H.  And  it  is  said 
that  the  bed  of  the  lake,  now  dry,  should  be  divided  up  between 
the  several  riparian  owners  in  proportion  to  their  original 
frontage  and  that  the  boundary  lines  between  the  different 
owners  should  lead  to  the  center  line  of  the  lake.22  Strictly 
speaking  the  court  was  a  little  careless  in  approving  the  divi- 
sion which  was  made  in  this  case  as  shown  by  the  plat.  It  was 
proper  to  find  the  center  line  of  the  lake  and  require  the  divi- 
sion lines  to  run  to  such  center.  However,  the  lines  should 
converge  or  diverge,  as  the  case  may  be,  so  as  to  give  each 
riparian  owner  his  equitable  proportion  of  the  dried  up  bed  or 
accretion  or  reliction.  The  line  H-M  as  held  to  be  the  south 
line  of  plaintiff's  lands  is  not  strictly  in  accordance  with  the 
weight  of  the  authority.  In  our  opinion  such  line  should  bear 
slightly  toward  the  north  from  the  point  M.23  In  all  such 
cases  the  court  should  consider  the  surrounding  circumstances 
and  especially  consider  what  rights  each  riparian  owner  has 
to  the  dry  lake  bed  even  should  the  owners  not  all  be  repre- 
sented in  the  litigation  before  the  court.  The  court  should 
finally  order  a  partition  thereof  in  such  a  manner  as  to  give 
each  owner  his  equitable  proportion  of  the  flat,  dry  lake  bed. 
accretion  or  reliction. 

§  274.  Fraudulent  survey  and  return  by  government  offi- 
cials: Meander  line  held  to  be  the  boundary  line. — We  have 
seen  that,  generally  speaking,  a  meander  line  is  not  a  boundary 
line  but  is  run  for  the  purpose  of  tracing  the  direction  of  the 
stream  for  platting  purposes  and  for  computation  of  the  area.24 
To  this  rule  there  are  some  exceptions.  Especially  is  this  the 

22Olson  v.  Huntamer,  6  S.  Dak.          28Ante  §  254. 
364,   61   N.   W.   479.  24Ante  §  255. 


277 


RIPARIAN   RIGHTS 


§    274 


case  where  the  meander  line  was  fraudulently  run  by  the  gov- 
ernment surveyors  or  where  there  was  some  mistake  in  the 
running  thereof  or  in  reporting  of  the  notes  of  survey  to  the 
commissioner.25  In  this  cause  the  court  had  under  considera- 
tion the  ownership  of  certain  lands  between  the  supposed 


meander  line  of  a  lake  and  the  actual  lake.  Fig.  67.  Refer- 
ring to  the  diagram,  sections  2,  3,  4,  9,  10  and  1 1  of  a  certain 
township  are  represented.  The  government  surveyors  did  not 
run  any  of  the  interior  lines  of  the  sections  or  establish  any 
corners  as  a  matter  of  fact.  The  surveyors  did  find  the  point 
A  on  the  diagram  and  made  their  return  to  the  land  office  and 
certified  to  the  plat  wherein  the  lake  was  shown  as  represented 

25Security  Land  &  Exploration 
Co.  v.  Burns,  87  Minn.  97,  91  N. 
W.  304. 


§    274  SURVEYING  AND  BOUNDARIES  278 

by  the  light  lines  and  the  several  lots  as  given  thereon.  Not 
a  meander  line  was  run.  The  plat  and  return  were  false  and 
fraudulent.  The  lake  never  extended  over  the  parts  represented 
between  said  light  lines  and  the  heavy  dark  lines  which  mark 
the  actual  shore  of  the  lake.  The  banks  of  the  lake  are  high 
and  dry.  The  lands  surrounding  the  lake  at  the  time  of  the 
original  survey  were  covered  with  heavy  timber.  Some  of 
the  trees  were  many  inches  in  diameter,  thus  conclusively 
showing  that  the  lake  never  did  extend  over  the  territory  be- 
tween the  light  and  heavy  lines.  Lots  i,  2,  and  8  in  section  4 
were  in  dispute.  After  the  state  government  discovered  the 
fraud,  it  had  the  land  about  the  lake  resurveyed  by  the  federal 
government  and  a  correct  return  and  plat  made.  This  was 
many  years  subsequent  to  the  first  survey,  which  had  been 
duly  approved  by  the  government.  The  land  between  the 
original  meander  line,  as  shown  on  the  plat,  adjacent  to  lots 
i,  2  and  8,  section  4,  and  the  actual  shore  line  were,  subsequent 
to  the  second  survey,  sold  and  patented  to  others.  The  lake 
as  originally  shown  contained  over  one  thousand  eight  hun- 
dred acres  in  area,  but,  as  a  matter  of  fact,  it  contained  about 
eight  hundred  acres  only.  It  was  held  "that  a  meander  line 
is  not  as  a  general  rule  a  boundary  line,  yet  the  boundaries  of 
fractional  lots  can  not  be  indefinitely  extended  where  they 
appear  by  the  government  plat  to  abut  on  a  body  of  water 
which,  in  fact,  never  existed  at  substantially  the  place  indi- 
cated on  the  plat.  In  such  exceptional  cases,  the  supposed 
meander  line  will,  if  consistent  with  the  other  calls  and  dis- 
tances indicated  on  the  plat,  mark  the  limits  of  the  survey,  and 
be  held  to  be  the  boundary  line  of  the  land  it  delimits."28 
The  court  lays  stress  on  the  fact  that  the  return  and  survey 
made  and  filed  in  the  first  instance  were  false  and  fraudulent 

26Security  Land  &  Exploration 
Co.  v.  Burns,  87  Minn.  97,  91  N. 
W.  304. 


279  RIPARIAN    RIGHTS  §    276 

and  that  as  a  matter  of  fact,  as  to  the  several  sections  of  land 
indicated  on  the  plat  there  had  been  no  survey.  To  allow  such 
a  survey  to  stand  would  be  to  work  a  fraud  on  the  government, 
and,  if  the  government  was  bound  thereby,  there  would  be  no 
limit.  The  party  who  originally  bought  the  lots  in  question,  of 
course,  bought  and  paid  for  the  number  of  acres  shown  on  the 
government  plat  and  such  party  received  and  rightly  retained 
such  acreage.  Hence,  as  his  lots  never  had  any  lake  frontage, 
he  was  not  in  any  way  prejudiced  in  his  rights  by  being  held 
to  the  supposed  meander  line  as  returned. 

§  275.  Conveyance  on  meandered  lake  carries  all  the  land. 
— Contrast  the  decision  referred  to  in  the  last  section  with  that 
in  Lamprey  v.  State.27  In  the  latter  case  the  court  says : 
"When  the  United  States  has  disposed  of  the  land  bordering 
on  a  meandered  lake,  by  patent,  without  reservations  or  re- 
strictions, it  has  nothing  left  to  convey,  and  any  patent  there- 
after issued  for  land  forming  the  bed,  or  former  bed,  of  the 
lake,  is  void  and  inoperative."  Under  the  facts  in  the  case 
cited  this  was  entirely  proper.  In  this  case  the  meander  line 
was  substantially  the  original  shore  line  and  the  survey  was 
actually  made  and  returned  as  made.  Subsequently  the  shore 
of  the  lake  receded  by  gradual  process,  the  lake  drying  up. 
There  was  no  question  of  fraud  or  falsity  in  the  survey.  In 
the  case  under  consideration  the  court  was  following  the 
general  rule  in  all  such  cases.  It  is,  therefore,  important  to 
determine  whether  or  not  the  meander  line  was  properly  run 
and  without  fraud  or  mistake. 

§  276.  Law  of  state  determines  title  to  land  under  lake. — 
It  is  the  universal  rule  in  this  country  that,  after  a  state  has 
been  admitted  into  the  Union,  the  law  of  that  state  determines 
the  title  and  ownership  of  the  beds  of  lakes  and  streams  as 

27Lamprey  v.  State,  52  Minn. 
181,  53  N.  W.  1139,  18  L.  R.  A. 
670,  38  Am.  St.  541. 


§    276  SURVEYING  AND   BOUNDARIES  280 

between  the  riparian  owner  and  the  state.  That  is,  after  the 
United  States  has  patented  its  rights  to  the  lands  lying  along 
the  shores  of  waters  it  will  be  held,  in  the  absence  of  fraud  or 
mistake,  that  the  government  has  parted  with  all  of  its  rights 
to  such  shore  and  the  beds  of  such  waters.28  This,  of  course, 
must  be  qualified  should  the  patent  be  subject  to  certain  reser- 
vations or  exceptions.  The  state  of  Minnesota,  through 
Mitchell,  Justice,  holds  to  the  rule :  "When  the  United  States 
has  made  grants  without  reservations  or  restrictions,  of  pub- 
lic lands  bounded  on  streams  or  other  waters,  the  question 
whether  the  lands  forming  the  beds  of  waters  belong  to  the 
state  or  to  the  owners  of  the  riparian  lands,  is  to  be  determined 
entirely  by  the  law  of  the  state  in  which  the  land  lies."29  In 
navigable  lakes  the  riparian  owner  has  title  to  low-water 
mark.30 

§  277.  Title  to  bed  of  navigable  and  nonnavigable  waters. 
— The  ownership  of  the  beds  of  lakes  is  of  importance  to  the 
riparian  proprietor.  Of  nonnavigable  lakes  the  general  rule  is 
that  the  riparian  owner  owns  the  beds  thereof  to  the  center 
line.  In  the  event  the  lake  dries  up  the  dry  beds  thereof  should 
be  divided  between  the  several  riparian  proprietors  in  an  equit- 
able manner  as  we  have  seen.31  The  beds  of  navigable  lakes 
generally  belong  to  the  state  but  even  in  such  cases,  should  the 
lake  dry  up  and  the  waters  recede,  the  riparian  owner  would 
rightfully  claim  the  right  to  follow  the  receding  waters  toward 
the  center  line  of  the  lake.  The  proper  manner  of  division  of 
the  new  shore  line  in  all  such  cases  is  fully  discussed  in  this 
chapter.  The  shape  of  the  shore  line,  the  shape  of  the  lake, 

28Lamprey   v.    State,   52   Minn.  Smale,  140  U.  S.  406,  35  L.  ed.  442, 

181,  53  N.  W.  1139.  ii   Sup.   Ct  819,  840. 

29Lamprey    v.    State,    52    Minn.  s°Ladd  v.  Osborne,  79  Iowa  93,  44 

181,    53    N.   W.    1139;    Hardin   v.  N.  W.  235;  Boorman  v.  Sunnuchs, 

Jordan,   140  U.   S.  371,  35   L.  ed.  42  Wis.  233;   Stoner  v.  Rice,   121 

428,    ii   Sup.  Ct.  808;   Mitchell  v.  Ind.  52,  22   N.  E.  968. 

§  248. 


28 1  RIPARIAN   RIGHTS  §    277 

and  all  of  the  surrounding  circumstances  enter  into  the  prob- 
lem of  the  proper  division  thereof  and  should  always  be  care- 
fully considered  by  the  court  or  the  surveyor.  The  Supreme 
Court  of  the  state  of  Minnesota,  speaking  through  Mitchell, 
Justice,  in  case  of  Lamprey  v.  State,32  and  referring  to  the 
courts  of  Wisconsin,  say :  "The  courts  of  that  state  do,  how- 
ever, hold  that  the  riparian  proprietor  has,  as  such,  the  exclu- 
sive right  of  access  to  and  from  the  lake  in  front  of  his  land, 
and  of  building  his  piers  and  wharves  in  aid  of  navigation, 
not  interfering  with  the  public  easement  where  the  lake  is 
navigable;  also,  that  he  has  the  accretions  formed  upon  or 
against  his  land,  and  those  portions  of  the  bed  of  the  lake 
adjoining  his  land  which  may  be  uncovered  by  the  recession 
of  the  water;  there  being  no  distinction,  in  respects  of  the 
rights  of  riparian  owners,  between  accretion  and  relictions." 
And  the  same  court  lays  down  the  rule :  "In  accordance  with 
the  rules  of  the  common  law,  we,  therefore,  hold,  that  where 
a  meandered  lake  is  nonnavigable  in  fact,  the  patentee  of  land 
bordering  on  it,  takes  to  the  middle  of  the  lake ;  that  where  the 
lake  is  navigable,  in  fact,  its  waters  and  bed  belong  to  the 
state,  in  its  sovereign  capacity,  and  that  the  riparian  patentee 
takes  the  fee  only  to  the  water's  edge,  but  with  all  the  rights 
incident  to  riparian  ownership  on  navigable  waters,  including 
the  right  of  accretions  or  relictions  formed  or  produced  in 
front  of  his  land  by  the  action  or  recession  of  the  waters."38 
We  think  this  is  a  plain  statement  of  the  weight  of  authority 
in  such  cases.  It  must  be  remembered  that  the  riparian  owner 
has  the  right  to  construct  piers  or  docks  on  his  water-front 
to  navigable  waters.34  There  are  many  variations  in  the  rule 
for  the  division,  among  riparian  owners,  of  their  respective 
rights  to  accretion  or  reliction.  Especially  is  this  so,  for  the 

32Lamprey  v.  State,  52  Minn.  34 Whitney  v.  Detroit  Lumber 

196,  53  N.  W.  1139-  Co.,  78  Wis.  240,  47  N.  W.  425; 

33Lamprey  v.  State,  52  Minn.  Northern  Pine  Land  Co.  v.  Bige- 

198,  53  N.  W.  1139.  low,  84  Wis.  163,  54  N.  W.  496. 


§    2/8  SURVEYING   AND   BOUNDARIES  282 

division  of  the  bed  of  a  lake  left  dry  by  recession.  If  the  lake 
be  substantially  a  round  one,  then,  doubtless,  an  equitable  di- 
vision of  the  accretion  could  be  made  by  running  lines  from 
the  boundaries  of  the  riparian  proprietor's  lands  toward  a 
point  in  the  center  of  the  lake.35  If  the  lake  be  a  long  one 
then  a  modified  rule  should  be  followed.  In  such  case  a  line 
should  be  run  through  the  center  of  the  lake  and  then  deflected 
lines  should  be  run  to  such  center  line  from  the  division  lines 
of  the  several  riparian  owners.36 

§  278.  Division  of  alluvial  on  unnavigable  river. — As  has 
already  been  suggested,  the  courts,  in  the  division  of  alluvial 
rights,  seek  to  make  an  equitable  division  thereof  between  all 
of  the  riparian  owners  of  the  shore.  Some  courts  lay  down 
the  rule  that  the  old  and  new  shore  lines  should  both  be 
measured,  and  that  the  new  shore  line  should  be  divided  be- 
tween all  of  the  riparian  owners  in  proportion  to  the  part  of  the 
old  shore  line  owned  by  each.87  To  us  this  seems  equitable. 
However,  other  courts  divide  the  new  shore  line  by  running 
straight  lines  from  the  point  where  tha  division  line  strikes 
the  old  shore  line  to  a  point  in  the  new  shore  line  perpendicular 
to  that  line  at  that  point,  or,  as  others  hold,  perpendicular  to 
the  thread  of  the  stream  as  newly  constituted.  In  the  case 
cited  it  is  said:  "Where  alluvial  is  formed  on  lands  border- 
ing on  an  unnavigable  river,  owned  by  conterminous  pro- 
prietors, the  rule  for  distribution  of  the  accretions  is  to  extend 
the  side  lines  of  each  owner  to  the  nearest  river  bank,  giving 
to  each  the  alluvial  deposits  in  front  of  his  own  land,  especially 
if  equitable."38  The  accompanying  diagram,  Fig.  68,  will 
illustrate  the  method  of  division  adopted  by  the  court.  AB 
is  the  shortest  distance  to  the  new  shore  line  from  the  old  shore 

85Post  §  301.  38Hubbard    v.    Manwell,    60    Vt. 

36Post  §§  282-322.  235,   14  Atl.  693,  60  Am.   St.   1 10, 

"Northern    Pine    Land     Co.    v.      13  Ann.  Cas.  50. 
Bigelow,  84  Wis.    163,   54   N.   W. 
496;  ante  §  254. 


283 


RIPARIAN    RIGHTS 


§  279 


line  on  one  side  of  the  tract  and  CD  is  the  shortest  distance  to 
the  new  shore  line  from  the  other  side  line  of  plaintiffs  lot, 
or,  as  the  court  says,  the  lines  perpendicular  to  the  new  shore 
line  at  the  point  of  intersection  of  the  boundary  with  the  old 
shore  line.  BDFE  represents  the  alluvial  deposit.  This 


Pq.68 


method  of  division  seems  a  little  inequitable.  It  would  not 
give  to  each  riparian  owner  an  equitable  proportion  of  the  new 
shore  or  of  the  alluvial,  as  will  be  evident. 

§  279.  Meander  line  and  official  plat. — Where  the  meander 
line  and  the  shore  line  of  waters  differ  what  is  the  true  rule 
for  running  the  division  line  between  two  riparian  proprietors  ? 
We  have  seen  in  a  previous  section  that  the  Wisconsin  Su- 
preme Court  has  laid  down  the  rule  that  such  division  line 
should  be  run  from  the  point  on  the  bank  of  the  stream  to  the 
center  thereof  and  at  right  angles  to  the  thread  of  the  stream.39 
Fig-  55*  But  a  different  rule  has  been  laid  down  in  Minnesota 
by  its  courts.  In  that  state  it  has  been  held  that  where  the 
meander  line  of  an  inland  meandered  navigable  lake  is  not  a 

39Ante  §  259. 


§  279 


SURVEYING  AND   BOUNDARIES 


284 


boundary  line  of  the  fractional  lots  or  tracts  of  land  abutting 
thereon,  the  title  of  contiguous  owners  extends  to  all  land  be- 
tween such  line  and  the  shore  of  the  lake,  precisely  as  though 
it  was  the  result  of  accretion  or  reliction;  and  the  boundaries 
of  adjoining  tracts,  as  to  land  beyond  the  meander  line,  are 
fixed  by  extending  their  side  lines  on  a  deflected  course  from 
the  intersection  with  the  meander  line  toward  a  point  in  the 


Fiq.69 


center  of  the  lake.40    Fig.  69.    As  suggested  above  there  are 
two  lines  of  decisions  on  the  points  thus  involved.     The  case 

40Hanson  v.  Rice,  88  Minn.  273, 
92  N.  W.  982. 


285  RIPARIAN   RIGHTS  §    280 

of  Hanson  v.  Rice  represents  one  line  and  the  case  of  Whitney 
v.  Detroit  Lumber  Co.,  and  Menasha  Wooden  Ware  Co.  v. 
Lawson,  represent  the  other  views.41  In  the  case  of  Whitney 
v.  Detroit  Lumber  Co.,  it  was  held  that  the  government  lot 
could  not  be  made  to  extend  beyond  the  1/8  line.  The  court, 
in  that  case,  says :  "According  to  the  government  survey  and 
plat,  fractional  lot  number  3,  in  a  certain  section,  contained 
twenty-six  acres  in  the  northern  portion  of  the  N.  E.  1/4  of 
the  N.  W.  1/4  of  the  section.  The  plat  showed  the  rest  of 
E.  1/2  of  the  N.  W.  1/4  of  the  section  to  be  a  lake,  the  mean- 
dered line  of  which  was  the  southern  boundary  of  the  frac- 
tional lot;  in  fact,  there  was  no  lake  in  the  E.  1/2  of  the  N. 
W.  1/4  of  the  section.  Held  that  the  patent  to  the  lot  gave 
title  only  to  the  north  forty  acres  of  the  E.  i/2."42 

Referring  to  Fig.  69,  the  diagram  represents  Sec.  4-21-35. 
Lots  represented  thereon  as  2,  4  and  7  in  controversy.  Lot  7 
is  owned  by  the  plaintiff  and  lots  2  and  4  by  the  defendant. 
The  actual  shore  line  of  the  lake  is  represented  by  the  lines  as 
at  N,  B,  D,  F,  H,  O.  The  government  field-notes  place  the 
meander  line  at  N,  A,  J,  P.  Plaintiff  claimed  the  west  line  of 
lot  7  to  be  EJN.  Defendant  claimed  such  line  as  at  EJF.  The 
court  held  the  latter  line  to  be  the  correct  line  of  division.43 
See  also  Figs.  37  and  38.  By  a  careful  study  of  the  diagrams 
to  which  reference  is  made  and  the  cases  cited  a  clear  under- 
standing will  be  gained. 

§  280.  Riparian  rights  on  nonnavigable  lake  same  as  on 
streams. — The  same  rules  govern  the  rights  of  riparian  own- 
ers on  nonnavigable  lakes  or  other  still  waters  as  govern  such 
rights  on  streams.  Hence  if  a  meandered  lake  is  nonnavigable, 
in  fact,  the  patentee  of  the  riparian  land  takes  the  fee  to  the 

41Whitney  v.  Detroit  Lumber  Co.,  42Whitney  v.  Detroit  Lumber  Co., 

78  Wis.  240,  47   N.  W.  425 ;    Me-  78  Wis.  240,  47  N.  W.  425. 

nasha  Wooden-Ware  Co.  v.   Law-  43Hanson  v.  Rice,  88  Minn.  273, 

son,  70  Wis.  600,  36  N.  W.  412.  92  N.  W.  982. 


§    28l  SURVEYING  AND  BOUNDARIES  286 

center  of  the  lake;  but  if  the  lake  is  navigable,  in  fact,  its 
waters  and  bed  belong  to  the  state,  in  its  sovereign  capacity, 
and  the  riparian  patentee  owns  the  fee  only  to  the  water  line, 
but  with  all  of  the  rights  incident  to  riparian  ownership  on 
navigable  waters,  including  the  rights  to  accretions  or  relic- 
tions formed  in  front  of  his  land  by  the  action  or  recession  of 
the  waters.44  This  is  a  plain  statement  of  the  great  weight  of 
authority.  Should  a  navigable  lake  dry  up  the  riparian  pro- 
prietors, doubtless,  would  follow  the  water  lines  as  the  waters 
receded  and  the  rule  for  a  division  thereof  between  the  several 
riparian  proprietors  would  be  the  same  as  for  the  division  of 
the  beds  of  nonnavigable  lakes  or  ponds. 

§  281.  Patent  of  lake  shore  carries  all  of  the  land. — It  is 
the  universal  rule,  in  the  absence  of  fraud  or  mistake,  that 
when  the  United  States  has  disposed  of  the  lands  bordering  on 
a  meandered  lake,  by  patent,  without  reservation  or  restric- 
tion, it  has  nothing  which  it  can  convey,  and  any  patent  there- 
after issued  for  land  forming  the  bed  of  the  lake,  or  former 
bed,  is  void  and  inoperative.45  Of  course,  it  must  be  under- 
stood that  this  is  the  rule  in  the  absence  of  fraud  or  mistake 
in  making  the  original  survey  and  running  the  meander  lines. 
Such  fraud  or  mistake  being  shown,  the  government  may  sub- 
sequently convey  the  land  lying  between  the  meander  line,  as 
run,  and  the  actual  lake  shore.46  As  will  be  seen  by  a  former 
section  the  Wisconsin  courts  have  laid  down  the  rule  that  the 
grantee  taking  from  the  government  a  patent  in  such  cases 
will  be  permitted  to  follow  the  shore  line  or  toward  the  shore 
line  until  he  reaches  the  next  regular  subdivisional  line  of  the 
section.47 

44Lamprey  v.  State,  52  Minn.  Co.  v.  Burns,  87  Minn.  97,  91  N. 

182,  53  N.  W.  1139.  W.  304. 

45Lamprey  v.  State,  52  Minn.  47Whitney  v.  Detroit  Lumber  Co., 

182,  53  N.  W.  1139.  78  Wis.  240,  47  N.  W.  425;  ante  § 

"Security    Land    &    Exploration  279. 


287  RIPARIAN    RIGHTS  §    282 

§  282.  Division  of  rights  of  accretion  among  riparian  own- 
ers.— As  we  have  seen  in  this  chapter  various  rules  have  been 
laid  down  by  the  different  courts  for  the  division  of  accretion 
among  riparian  owners  under  varied  circumstances.  It  is  the 
rule,  as  we  have  stated,  that  riparian  owners  are  entitled  to  all 
accretions  made,  to  the  land  granted,  either  by  the  retreating  of 
the  waters  from  their  former  limits ;  or  by  the  slow  and  secret 
deposit  of  sand  or  other  substance.48  And  the  owners  of  the 
shore  line  are  entitled  to  the  ice  formed  on  those  waters  adja- 
cent to  the  shore  owned  by  them  respectively.  The  division  of 
this  ice  among  the  several  owners  of  the  shore  line  raises  a 
question  similar  to  the  division  of  the  dried  up  bed  of  a  lake 
or  stream.  Unless  the  contrary  appears  a  grant  of  land 
bounded  by  a  water  course  conveys  riparian  rights  and  the 
title  of  the  riparian  owner  extends  to  the  middle  line  of  the 
lake  or  stream.49  The  proprietor  of  the  shore  owns  to  the 
thread  or  center  line  of  the  waters  and  it  is  said  in  a  Michigan 
case  side  lines  are  to  be  governed  by  the  course  of  the  stream, 
and  the  submerged  lands  by  lines  drawn  at  right  angles  with 
the  central  thread  thereof,  rather  than  at  right  angles  with  the 
shore  line  at  the  point  of  departure.  In  the  case  last  cited  the 
court  criticises  the  decision  of  the  same  court  in  the  case  of  Clute 
v.  Fisher.50  But  on  the  whole  each  case  must  be  decided  on  its 
own  merits  and  the  court  must  consider  all  of  the  circumstances 
and  then  divide  the  rights  equitably  between  all  of  the  owners, 
applying  the  principles  well  grounded  in  the  decisions  of  the 
several  jurisdictions.51  Referring  to  Fig.  70,  plaintiff  was 
the  owner  of  tract  ABC  and  the  defendant  was  the  owner  of 
tract  EFGRP.  The  controversy  was  as  to  what  part  of  the 

48Hagan  v.  Campbell,  8  Port.  50Clute  v.  Fisher,  65  Mich.  48, 

(Ala.)  9,  33  Am.  Dec.  267.  31  N.  W.  614. 

*9Grand  Rapids  Ice  &c.  Co.  v.  51Grand  Rapids  Ice  &c.  Co.  v. 

South  Grand  Rapids  Ice  &c.  Co.,  South  Grand  Rapids  Ice  &c.  Co., 

102  Mich.  227,  60  N.  W.  681,  47  102  Mich.  227,  60  N.  W.  681,  47  Am. 

Am.  St.  516.  St.  516. 


§    282 


SURVEYING  AND   BOUNDARIES 


288 


ice  of  the  lake  the  respective  parties  had  a  right  to  cut.  It 
was  held  that  the  plaintiff's  riparian  rights  were  bounded  by 
the  lines  ALIJOC  and  the  defendant's  rights  were  bounded 
by  the  lines  PMINR.  The  lines  AL,  CO,  MP,  NR  are  sup- 


Fiq.  70 

posed  to  be  perpendicular  to  the  center  line  of  the  lake.  We 
believe  this  doctrine  is  the  true  one  and  is  sustained  by  the 
great  weight  of  authority.  As  applied  generally  the  case  of 
Clute  v.  Fisher  does  not  dispute  this  proposition  but  appears  to 
lay  down  a  different  rule  in  that  particular  case  for  the  reason 
that  "the  pond  or  lake  is  almost  entirely  within  two  sections," 
and  the  court  holds  that  the  subdivisional  lines  of  the  section 
should  be  prolonged  into  the  lake  in  making  the  division  of 
the  rights  of  the  parties.  This  proposition  deserves  the 
criticism  of  the  later  decisions  of  the  court  as  found  in  a  more 
recent  decision.52 

82Grand    Rapids    Ice   &c.    Co.    v.      102   Mich.  227,  60  N.  W.  681,  47 
South   Grand    Rapids    Ice   &c.   Co.,      Am.   St.   516. 


289  RIPARIAN   RIGHTS  §    284 

§  283.  Meander  line  run  as  near  water  as  possible. — Some- 
times it  is  a  nice  question  as  to  whether  certain  alluvium  be- 
longs to  the  government  or  to  some  one  of  its  grantees.  The 
facts  and  circumstances  surrounding  the  original  survey  and 
the  location  of  the  meander  line;  also  the  reading  of  the  de- 
scription in  the  patent  and  the  construction  of  such  description 
are  of  prime  importance.  It  has  been  held  by  the  Supreme 
Court  of  Louisiana  that,  "Where  it  is  shown  that  the  boundary 
lines  of  the  land  claimed  by  one  holding  under  a  confirmation 
by  the  United  States  and  a  survey  made  by  a  government  sur- 
veyor, were  run  as  near  as  possible  to  a  bar,  the  whole  of 
which  was  subject  to  be  overflowed  at  high-water  mark,  and 
the  greater  part  of  it  to  an  annual  overflow,  so  as  to  include  all 
of  the  high  land  susceptible  of  ownership,  the  proprietor  will 
be  entitled  to  the  alluvium,  subsequently  formed  on  the  bar."53 
But  still  any  separation  of  the  claimant's  land  from  the  allu- 
vium by  the  lands  of  another,  however  narrow  the  intervening 
strip,  or  whatever  the  size  of  the  claimant's  land,  precludes  the 
claimant  from  the  accumulated  alluvium.54  In  the  latter  case 
the  boundary  description  did  not  mention  the  river  but  was 
fixed  by  metes  and  bounds,  monuments  and  courses  and  dis- 
tances and  there  was  some  fourteen  acres  of  land  between  the 
claimant's  land  and  the  river.  The  reason  for  the  rule  is  clear. 
The  claimant  was  not  a  riparian  owner  and  had  no  rights  in 
that  regard. 

§  284.  Where  water  line  the  boundary  but  shifts. — Where 
the  water  line  is  made  the  boundary  of  a  tract  it  so  remains  no 
matter  how  much  it  may  shift.  And  the  Supreme  Court  of 
the  United  States  has  said  that,  "Where  the  water  line  is  the 
boundary  of  a  given  lot,  that  line,  no  matter  how  it  shifts, 
remains  the  boundary;  and  a  deed  describing  the  lot  by  its 
number  conveys  the  land  up  to  such  shifting  water  line;  so 
that  in  the  view  of  accretion,  the  water  line,  if  named  as  the 

53Stephenson  v.  Goff,  10  Rob.  54Sweringen  v.  St.  Louis,  151  Mo. 
(La.)  99,  43  Am.  Dec.  171.  348,  52  S.  W.  346;  post  §  501. 


§    284  SURVEYING  AND  BOUNDARIES  290 

boundary,  continues  to  be  the  boundary,  and  a  deed  of  the  lot 
carries  all  the  land  up  to  the  water  line."55  The  facts  in  the 
case,  briefly  stated,  are :  A  fractional  section  of  land  on  the 
left  bank  of  the  Missouri  river,  in  Iowa,  was  surveyed  by 
United  States  surveyors  in  1851,  and  lot  4  therein  was  formed, 
and  so  designated  on  the  plat  filed,  and  as  containing  thirty- 
seven  and  twenty-four  hundredths  acres,  the  north  boundary  of 
it  being  on  the  Missouri  river.  In  1853,  the  lot  was  entered 
and  paid  for  and  patent  issued.  Afterwards  by  ten  different 
deeds  the  land  was  successively  conveyed  as  "lot  4"  down  to 
1888.  About  1853,  new  land  commenced  to  form  against  the 
north  line,  and  continued  to  form  thereon  until  1870,  so  that 
more  than  forty  acres  had  been  formed  by  accretion  by  natural 
causes  and  imperceptible  degrees  within  the  lines  running 
north  and  south  to  the  east  and  west  sides  of  the  lot  and  the 
course  of  the  river  ran  far  north  of  the  original  meander  line. 
The  defendant  claimed  to  own  a  part  of  the  new  land  by  deed 
from  one  who  had  entered  upon  it.  The  plaintiff  filed  a  bill 
to  establish  his  title  to  lot  4.  It  was  held  that  the  land  was 
alluvium,  as  the  time  of  formation  covered  a  period  of  about 
twenty  years.  Held  also  that  plaintiff  had  title  to  the  alluvium. 
The  court  cited  Banks  v.  Ogden.56  And  it  quoted  approvingly 
therefrom  as  follows:  "By  some  the  rule  has  been  vindi- 
cated on  the  principle  of  natural  justice,  that  he  who  sustains 
the  burden  of  losses  and  repairs,  imposed  by  the  contiguity  of 
waters,  ought  to  receive  whatever  benefits  they  may  bring  by 
accretion ;  by  others  it  is  derived  from  the  principle  of  public 
policy,  that  it  is  the  right  of  the  community  that  all  land  sold 
have  an  owner,  and  most  convenient  that  insensible  additions 
to  the  shore  should  follow  the  title  to  the  shore  itself/'57 

55Jefferis  v.  East  Omaha  Land  57Jeffris  v.  East  Omaha  Land 
Co.,  134  U.  S.  178,  33  L.  ed.  872,  10  Co.,  134  U.  S.  189,  33  L.  ed.  872,  10 
Sup.  Ct.  518.  Sup.  Ct.  518. 

5«Banks  v.  Ogden,  2  Wall.   (U. 
S.)  57,  17  L.  ed.  818. 


RIPARIAN   RIGHTS  §    285 

§  285.  To  entitle  party  to  alluvium,  water  must  form 
boundary. — As  already  noted  to  entitle  a  party  to  alluvium  of 
a  stream  or  body  of  water  his  boundary  must  be  marked  by 
that  body  of  water.  This  is  fundamental.58  In  the  latter  case 
the  court  says :  "To  entitle  a  party  to  claim  the  right  to  al- 
luvium formation,  or  land  gained  from  a  lake  by  alluvium,  the 
lake  must  form  a  boundary  of  his  land.  If  any  land  lies  be- 
tween his  boundary  line  and  the  lake,  he  can  not  claim  such 
formation."  And  it  is  the  rule  that  a  party  seeking  to  trans- 
fer alluvium  can  not  convey  title,  no  matter  how  strong  the 
language  used,  if  he  has  not  title  to  the  edge  of  the  body  of 
water.  The  court  in  its  opinion  in  the  last  case  cited  above 
says :  "Where  the  fee  in  the  shore  of  a  water  course  does  not 
belong  to  the  grantor,  no  words  of  description  in  a  grant  will 
convey  to  the  center  of  it,  and  where  the  United  States  has 
passed  its  title  to  land  bordering  on  and  covered  by  a  lake,  a 
subsequent  grant  of  adjoining  land,  purporting  to  bound  it  on 
the  lake,  will  not  invest  the  grantee  of  the  second  grant  with 
the  right  to  take  to  the  center  of  the  lake,  and  such  grantee 
will  have  no  right  to  alluvial  formation  therein."  If  the  terms 
of  the  grant  do  not  exclude  the  right  to  alluvial  formation, 
the  grant  will  carry  all  such  rights,  where  the  land  is  bounded 
by  water.59  And  it  is  said  in  that  case:  "Grants  of  land 
bordering  on  a  river  carry  the  exclusive  right  and  title  of 
grantee  to  the  center  of  the  stream,  unless  the  terms  of  the 
grant  clearly  denote  an  intention  to  stop  at  the  water's  edge." 
The  same  rule  applies  to  city  lots  platted  on  the  banks  of  a 
stream  or  body  of  water,  where  the  plat  showed  the  lots  by  an 
irregular  line  representing  the  water's  edge.60  Practically  this 
must  be  so,  of  necessity. 

58Bristol  v.  Carroll,  95  111.  84.  60Davenport     &c.      Railway      & 

59Davenport     &c.      Railway      &  Terminal  Co.  v.  Johnson,   188  111. 

Terminal  Co.  v.  Johnson,   188   111.  472,  59  N.  E.  497. 

472,  59  N.  E.  497. 


§    286  SURVEYING  AND  BOUNDARIES  2Q2 

§  286.     Doctrine  of  accretion  applies  to  states  and  nations. 

• — The  doctrine  of  accretion  applies  to  states  and  nations  as  well 
as  to  individuals,  unless  taken  away  or  modified  by  treaties  or 
stipulations.  It  applies  to  both  navigable  and  nonnavigable 
lakes  and  streams.61  It  is  said  in  the  latter  case  that :  "The 
principle  of  accretion  and  alluvium  applies  to  navigable  and 
nonnavigable  streams.  The  doctrine,  in  the  absence  of  stipula- 
tions otherwise,  applies  between  states  and  nations."  This 
doctrine  is  variously  modified  by  the  courts.  It  applies  to 
large  rivers  like  the  Mississippi  and  Missouri.  It  likewise 
applies  to  the  Great  Lakes  and  the  ocean,  subject,  of  course, 
to  the  public  right  of  navigation  and  improvement.62  In  the 
last  case  cited  it  is  said :  "Our  conclusions  are  that,  notwith- 
standing the  rapidity  of  the  changes  in  the  course  of  the  chan- 
nel, and  the  washing  from  the  one  side  and  on  to  the  other,  the 
law  of  accretion  controls  on  the  Missouri  river,  as  elsewhere, 
and  that  not  only  in  respect  to  the  rights  of  the  individual  land 
owners,  but  also  in  respect  to  the  boundaries  between  states. 
The  boundary,  therefore,  between  Iowa  and  Nebraska  is  a 
varying  line,  so  far  as  affected  by  these  changes  of  diminution 
and  accretion  in  the  mere  washing  of  the  stream."63  In  the 
latter  case  the  United  States  Supreme  Court  lay  down  the  rule 
with  reference  to  accretion  as  follows :  "Though  the  witnesses 
may  see,  from  time  to  time,  that  progress  has  been  made,  they 
could  not  perceive  it  while  the  progress  was  going  on." 

§  287.  Local  laws  generally  determine  rights  of  accre- 
tion.— It  is  the  general  rule  that  rights  to  accretion  are  gov- 
erned by  the  laws  of  the  state  where  the  land  lies  and  not  by 
the  laws  of  the  federal  government.  It  was  said  by  Adams, 
C.  J.  in  King  v.  St.  Louis,  that,  "I  may  incidentally  add  that 

61Denny  v.  Cotton,  3  Tex.  Civ.  63St.  Clair  v.  Lovingston,  23 
App.  634,  22  S.  W.  122.  Wall.  (U.  S.)  46,  23  L.  ed.  59. 

62Nebraska  v.   Iowa,    143   U.   S. 
359,  36  L.  ed.  186,  12  Sup.  Ct.  396. 


293  RIPARIAN    RIGHTS  §    288 

the  general  doctrine  invoked  by  defendants  that  local  laws 
must  determine  the  riparian  rights  of  owners  of  real  estate 
bounded  on  navigable  rivers  is  subject  in  all  cases  to  a  consid- 
eration of  the  primary  right  of  the  United  States  in  navigable 
waters  for  the  purposes  of  commerce."64  In  the  latter  case  the 
court  cites  a  case  from  the  Supreme  Court  of  the  United  States 
where  the  principle  is  upheld.65  The  suggestion  therein  is 
found  in  many  of  the  reported  cases  and,  of  course,  is  sound 
on  principle.  This  does  not  mean  that  a  riparian  owner  would 
not  be  permitted  to  build  docks  to  navigable  water.  It  is  fun- 
damental that  he  may  build  such  docks  and  that  the  law  of  ac- 
cretion applies  in  the  division  of  dock  privileges.66 

§  288.  Public  or  private  road  may  modify  rule. — Where  a 
public  highway  lies  between  the  land  to  which  it  is  claimed 
accretion  attaches  and  the  body  of  water,  such  land  will  not 
carry  the  right  of  accretion  but  it  will  rest  in  the  public.  How- 
ever, if  such  way  is  a  private  way  maintained  by  the  owner  of 
such  land  and  worked  by  him  at  his  own  expense  solely,  the 
right  to  accretion  would  belong  to  such  claimant.67  In  this 
case  the  court  says :  "A  street  or  towpath  or  passage  way  or 
other  open  space  permanently  established  for  public  use  be- 
tween the  river  and  the  most  eastern  row  of  lots  or  blocks  in 
the  former  town  of  St.  Louis,  when  it  was  first  laid  out,  or 
established,  would  prevent  the  owners  of  such  lots  or  blocks 
from  being  riparian  proprietors  of  the  land  between  such  lots 
or  blocks  and  the  river.  But  this  will  not  be  true  of  a  passage 
way  or  towpath  kept  up  at  the  risk  and  charge  of  the  pro- 
prietor of  the  lots,  and  following  the  changes  of  the  river  as  it 
receded  or  encroached,  and  if  the  enclosure  of  the  proprietor 
was  advanced  or  set  in  with  such  recession  or  encroachment." 

64King  v.  St.  Louis,  98  Fed.  641.  Bigelow,   84   Wis.    163,   54    N.   W. 

65Gibson    v.    United    States,    166  496. 

U.  S.  271,  41  L.  ed.  996,  17  Sup.  Ct.  67St.  Louis  Public  Schools  v.  Ris- 

578.  ley,  10  Wall.  (U.  S.)  91,  19  L.  ed. 

66Northern    Pine    Land    Co.    v.  850. 


§    288  SURVEYING  AND  BOUNDARIES  294 

And  it  was  said  in  a  Louisiana  case  that :  "The  vendee  of  the 
riparious  estate  acquires  a  qualified  property,  in  the  banks  of 
the  river,  and  consequently  the  batture  which  may,  thereafter, 
arise  before  the  estate,  and  an  intervening  highway  does  not 
prevent  this,  when  the  owner  of  the  estate  is  bound  to  repair 
it,  and  the  soil  is  at  his  risk."68  So  too,  where  the  original 
plat  of  a  tract  of  land  was  bounded  by  a  lake  and  the  shore  of 
the  lake,  at  the  time  the  land  was  platted  and  surveyed,  passed 
diagonally  across  one  of  the  streets.  It  was  held  that  the  owner 
of  one  of  the  blocks  so  platted  and  bordering  on  the  street 
through  which  the  shore  line  ran  would  have  no  rights  to  the 
bed  of  the  lake  left  bare  by  the  recession  of  the  waters  of  the 
lake.69  In  this  case  the  facts  were  substantially  that  a  party 
by  the  name  of  Kinsey  originally  owned  a  block  of  land  ad- 
joining Lake  Michigan  just  north  of  Chicago.  This  was  in 
1834.  He  had  the  land  platted  into  lots  and  the  plan  recorded. 
The  plan  as  recorded  was  bounded  on  the  east  side  by  Lake 
Michigan.  See  Fig.  71.  The  shore  line  of  such  lake  at  that 
time  was  several  hundred  feet  inland.  It  thereafter  receded. 
In  1834,  K  sold  block  54  to  O.  At  the  time  of  sale  the  shore 
line  of  the  lake  passed  diagonally  through  the  street  east  of 
and  adjacent  to  said  block.  In  1844,  the  lake  began  to  recede 
and  the  shore  line  at  time  of  the  suit  is  indicated  by  the  line 
m-n.  O  claimed  the  tract  marked  A  A,  as  an  accretion  to  his 
block.  K  never  conveyed  any  part  of  his  rights  in  the  bed  of 
the  lake  east  of  the  old  shore  line.  It  was  held  that  O  had  no 
rights  to  the  lands  left  dry  by  the  recession  of  the  waters  of 
the  lake  marked  on  the  diagram  "A"  "A."  Doubtless  the 
ruling  would  have  been  different  had  the  old  shore  bounded 
the  block  sold  O.  In  that  event  O  could  have  followed  the 
receding  waters  to  the  new  shore  line.  The  court  urged  that 
the  street  in  front  of  O's  land  was  a  three  cornered  strip  and 

68Morgan  v.  Livingston,  6  Mart.          69Banks   v.   Ogden,  2  Wall.    (U. 
(O.  S.)    (La.)   19.  S.)  57,  17  L.  ed.  818. 


295 


RIPARIAN   RIGHTS 


§   289 


that  O  took  to  the  center  of  such  strip  and  K  retained  title  to 
the  center  of  such  strip  from  the  east. 

§  289.     Accumulation  on  shore  or  filling  up  from  bottom. — 
Where  the  accumulation  is  to  the  shores  of  either  side  of  a 


§  289 


SURVEYING   AND   BOUNDARIES 


296 


narrow  stream  or  slough  the  riparian  owners  on  opposite  sides 
of  such  stream  take  the  accretion  attaching  to  their  respective 
shores  and  the  boundary  line  will  be  the  place  where  such 
accumulations  meet.  But  if  such  stream  or  slough  be  filled 
up  by  an  accumulation  on  the  bottom  thereof  the  parties  will 
take  to  the  thread  of  such  stream  or  center  line  thereof.70  It 
was  said  in  the  case  last  cited  that:  "It  must  follow  that  if 
the  shore  line  of  two  bodies  of  land,  divided  by  a  water  course, 
receive  accretions  until  they  come  together,  the  line  of  contact 


Plaintiff 


Slough 

Defendant 


Fiq.72 


will  be  the  division  line.     If,  however,  the  slough  gradually 
filled  up,  as  the  waters  receded  therefrom,  the  same  principle 

7°Buse  v.  Russell,  86  Mo.  214. 


297  RIPARIAN   RIGHTS 

is  applied,  and  the  land  belongs  to  the  riparian  owner  from 
whose  shore  the  water  receded,  and  for  this  purpose  it  makes 
no  difference  whether  the  water  was  navigable  in  the  common- 
law  sense,  or  the  general  acceptation  of  the  expression,  or  was 
a  nonnavigable  stream."  See  Fig.  72.  Referring  to  the  dia- 
gram one  of  the  parties  to  the  action  in  Buse  v.  Russell  owned 
land  along  the  shore  of  an  island  and  the  other  owned  land 
opposite  thereto  across  the  narrow  slough  on  the  main  shore. 
This  narrow  slough  or  stream  filled  up  and  the  principle  herein 
enunciated  was  applied.  See  also  Benson  v.  Morrow.71 

§  290.  Batture— Shoals— Shallows.— The  word  "batture" 
will  frequently  be  found  in  the  reports  of  states  in  which  set- 
tlements by  the  French  were  made  in  an  early  day.  This  term 
is  applied  to  shoals  or  shallows.  The  term  "batture"  is  de- 
fined as,  "An  elevation  in  the  bed  of  a  river  under  the  surface 
of  the  water ;  but  it  is  sometimes  used  to  signify  the  same  ele- 
vation when  it  has  risen  above  the  surface."72  And  it  is  said  that 
"batture  is  applied,  principally,  to  certain  portions  of  the  bed 
of  the  Mississippi  river  which  are  left  dry  when  the  water  is 
low,  and  are  covered  again,  either  in  whole  or  in  part,  by  the 
annual  swell."73  By  some  the  term  seems  to  be  used  in  the 
sense  of  accretion  but  it  can  hardly  be  so  applied  properly. 
Where  a  stream  is  filled  up  by  the  accumulation  on  its  bed 
such  accumulation  is  divided  between  the  owners  on  opposite 
sides  of  the  stream  by  a  line  following  the  thread  of  the  stream. 
Whereas,  if  the  accumulation  be  to  the  bank,  the  accumulation 
to  any  particular  bank  will  go  to  that  bank  as  an  accretion.74 
Hence,  as  it  will  be  seen,  the  rule  for  the  division  of  "batture" 
differs  materially  from  that  relative  to  the  division  of  accre- 
tion. This  should  be  borne  in  mind  in  a  partition  thereof 

71Benson    v.    Morrow,    61    Mo.  (La.)  19;  Leonard  v.  Baton  Rouge, 

345-  39  La.  Ann.  275,  4  So.  241. 

72Bouvier  Law  Diet.  74Benson  v.  Morrow,  61  Mo.  345 ; 

73Morgan  v.  Livingston,  6  Mart.  Buse  v.  Russell,  86  Mo.  214. 


§    2QI  SURVEYING  AND  BOUNDARIES  298 

among  riparian  owners  on  opposite  sides  of  a  stream  or 
slough. 

§  291.  Loss  by  accretion  or  submergence. — It  is  the  rule 
that  what  a  proprietor  may  gain  by  accretion  or  reliction  he 
may  lose  by  erosion  or  submergence.75  If  the  gain  by  accre- 
tion is  gradually  worn  away  and  carried  to  another  bank  the 
proprietor  can  not  follow  it  but  it  becomes  attached  to  the  bank 
owned  by  another  and  becomes  his  land.  In  the  case  of  Mul- 
vey  v.  Norton,  the  court  of  appeal  of  New  York  has  said : 
"Increase  by  imperceptible  degrees  makes  accretion  and  it  be- 
longs to  riparian  owners.  Such  title  is  liable  to  be  lost  by 
erosion  or  submergence;  the  erosion  to  affect  that  result  must 
be  accomplished  by  a  transportation  of  the  land  beyond  the 
owner's  boundary,  and  it  may  be  returned  by  accretion,  in 
which  case  the  ownership,  temporarily  lost,  may  be  regained ; 
and  so  land  lost  by  submergence  may  be  regained  by  reliction, 
unless  the  submergence  has  been  followed  by  such  a  lapse  of 
time  as  precludes  the  identity  of  the  land  from  being  estab- 
lished. If,  after  submergence,  the  water  disappears  from  the 
land,  either  by  its  gradual  retirement  or  the  elevation  of  the 
land  by  natural  or  artificial  means,  the  proprietorship  returns 
to  the  original  owner.  If  an  island  forms  upon  the  land 
originally  submerged  it  belongs  to  the  original  owner."  This 
is  perhaps  about  as  good  a  statement  of  the  law  as  can  be  found. 

§  292.  Strip  of  land  between  bank  and  meander  line. — 
Whether  a  strip  of  land  between  a  river  and  the  meander  line 
is  an  accretion  may  depend  on  the  intention  of  the  government 
in  leaving  such  strip.  The  surrounding  facts  and  circumstances 
may  tend  to  establish  such  intent.  Ordinarily  the  meander 
line  follows  the  windings  of  the  stream  and,  if  the  govern- 
ment plan  so  indicates  and  there  has  been  no  fraud  or  mistake, 
the  owner  of  such  land  will  have  riparian  rights.  The  ques- 

75Mulry  v.  Norton,  100  N.  Y.  424, 
3  N.  E.  581,  53  Am.  Rep.  206. 


299  RIPARIAN   RIGHTS  §    293 

tion  whether  or  not  the  meander  line  follows  the  bank  of  the 
stream  is  a  question  of  fact  to  be  determined  by  evidence 
aliunde.76  But  it  is  said  that  "Where  there  is  a  strip  of  land 
between  the  bank  of  the  river  and  the  meander  line,  an  entry 
of  government  land  bounded  by  the  meander  line  will  not 
include  such  strip."77  And  the  rule  is  that  where  the  boundary 
of  a  grant  from  the  government  is  made  to  correspond  with 
the  meander  line  or  in  other  words  where  the  meander  line  is 
a  boundary  line  the  patentee  can  not  claim  beyond  such  mean- 
der. And  it  is  said  in  the  case  last  cited,  "Where  lands  had 
formerly  extended  to  the  meander  line,  and  the  testimony 
showed  that  there  had  been  a  change  in  the  channel  of  the  river 
of  about  three-fourths  of  a  mile,  but  no  accretion  to  the  plain- 
tiff's land,  held,  that  the  boundaries  of  his  land  did  not  extend 
to  the  new  channel,  nor  beyond  the  meander  line/'78  This 
case  was  before  the  Supreme  Court  of  Nebraska  again.79  By 
a  reference  to  the  report  thereof  it  will  be  seen  that  the  gov- 
ernment subsequently  surveyed  and  sold  the  land  between  the 
meander  line  and  the  river.  Hence,  the  government  must  have 
determined  that  the  meander  line  in  that  instance  was  a  boun- 
dary line  and  under  no  circumstances  could  the  land  between 
the  bank  and  such  meander  line  be  an  accretion.  In  connec- 
tion with  this  section  we  suggest  that  the  reader  examine  the 
case  of  Security  Land,  &c.,  Co.  v.  Burns.80 

§  293.  Boundary  line  between  states  is  center  line  of  main 
channel. — Where  a  stream  marks  the  boundary  line  between 
two  states  it  is  the  rule  that  the  center  line  of  the  main  chan- 
nel of  such  stream  is  the  boundary  line  between  such  states.81 

76Bissell    v.    Fletcher,  19    Nebr.          79Bissell    v.    Fletcher,    27    Nebr. 

725,  28  N.  W.  303-  582,  43  N.  W.  350. 

"Bissell    v.    Fletcher,  19    Nebr.          80Security    Land    &    Exploration 

725,  28  N.  W.  303.  Co.  v.  Burns,  87  Minn.  97,  91  N.  W. 

78Bissell    v.    Fletcher,  19    Nebr.      304,  ante  §  274. 

725,  28  N.  W,  303.  81Franzini  v.  Layland,   120  Wis. 

72,  97  N.  W.  499- 


§    294  SURVEYING  AND  BOUNDARIES  3OO 

And  it  has  been  held  that  the  boundary  line  between  the  states 
of  Wisconsin  and  Minnesota  is  the  principal  navigable  channel 
of  the  Mississippi  river  and  such  boundary  line  need  not 
necessarily  be  in  the  middle  of  the  river  but  may  be  very  near 
one  side  of  the  river  at  places  and  very  near  the  other  side  at 
other  points.  It  is  evident  that  such  line  is  a  changing  line 
with  reference  to  the  middle  of  the  stream.  That  is,  it  fol- 
lows the  main  channel  of  the  river.82  And  it  is  held  that  in 
determining  the  boundary  lines  in  such  cases  the  term 
Mississippi  river  means  the  broad  expanse  of  waters ;  and  the 
numerous  bayous,  though  navigable,  are  not  included  therein.83 
And  the  long  acquiescence  of  a  certain  boundary  line  between 
two  states  by  such  states  may  be  conclusive  on  such  states  as 
to  its  location.84  And  in  the  state  of  Wisconsin  private 
parties  owning  land  along  such  stream  own  to  the  center  of 
the  main  channel  thereof  subject,  of  course,  to  the  public  in- 
terests.85 

§  294.  Unsurveyed  island  in  navigable  river. — It  will  be 
frequently  found  that  islands  in  a  navigable  river  were  not 
surveyed  by  the  government  at  the  time  of  making  the  original 
survey.  As  to  the  title  to  such  unsurveyed  islands  the  authori- 
ties are  not  completely  in  accord  in  the  several  states.  In  those 
states  holding  that  the  riparian  proprietor  owns  to  the  center 
of  the  main  channel  of  the  stream  subject  to  the  public  rights, 
it  is  held  that  such  owner  owns  such  island  unless  it  can  be 
shown  that  there  was  a  mistake  in  the  original  survey  and  that 
the  survey  of  the  island  was  unintentionally  omitted  or  that 
there  had  been  a  fraud  perpetrated  on  the  government  in  mak- 
ing such  survey.8'  And  in  such  cases  such  fraud  or  mistake 

82Franzini  v.  Layland,  120  Wis.  85Franzini  v.  Layland,  120  Wis. 
72,  97  N.  W.  499.  72,  97  N.  W.  499- 

83Franzini  v.  Layland,  120  Wis.  86Franzini  v.  Layland,  120  Wis. 
72,  97  N.  W.  499-  72,  97  N.  W.  499- 

84Franzini  v.  Layland,  120  Wis. 
72,  97  N.  W.  499- 


3OI  RIPARIAN   RIGHTS  § 

can  only  be  taken  advantage  of  by  the  government.87  In  those 
states  where  it  is  held  that  the  state  owns  the  beds  of  navigable 
streams,  an  island  situated  as  above  and  unsurveyed  would 
probably  be  held  to  be  the  property  of  the  state.88 

§  295.  Title  to  beds  of  navigable  rivers. — There  are  two 
lines  of  cases  dealing  with  the  title  to  the  beds  of  navigable 
streams.  One  line  of  cases  holds  that  the  riparian  owners 
take  to  the  center  of  the  main  channel  of  the  stream  subject 
to  the  public  rights  to  navigate  such  stream.  The  other  line 
of  decisions  holds  that  the  riparian  owner  owns  only  to  high- 
water  mark,  and  that  the  state  owns  the  bed  of  the  stream  and 
also  the  shore  below  high-water  mark.  As  an  illustration  of 
the  former  the  reader  is  referred  to  the  rule  in  Illinois  as  laid 
down  in  St.  Louis  v.  Rutz.89  The  latter  rule  is  sustained  by 
the  Iowa  court  in  Barney  v.  Keokuk.90  Thus  two  states  bor- 
dering on  the  same  river  have  established  two  fundamentally 
different  rules  with  reference  to  this  important  subject. 
Hence,  the  reader  must  necessarily  look  to  the  decisions  of  his 
own  state  to  find  the  rule  established  there.  Remember  each 
state  fixes  its  own  rule  with  reference  to  accretion  and  relic- 
tion and  rights  of  riparian  owners  thereto  and  the  federal 
courts  will  look  to  the  decisions  in  such  states  for  guidance. 

It  was  held  in  St.  Louis  v.  Rutz,  that,  "It  is  a  rule  of  prop- 
erty in  Illinois,  that  the  fee  of  the  riparian  owner  of  land  in 
that  state  bordering  on  the  Mississippi  river  extends  to  the 
middle  line  of  the  main  channel  of  the  river/'91  The  Iowa 
rule  is  laid  down  in  Barney  v.  Keokuk,  where  it  is  said,  "And 
it  is  held  that  the  bed  of  the  Mississippi  river  and  the  banks  to 
high-water  mark  belong  to  the  state,  and  that  the  title  of  the 

87Franzini  v.  Layland,  120  Wis.  90Barney  v.  Keokuk,  94  U.  S. 

72,  97  N.  W.  499.  324,  24  L.  ed.  224. 

88Post  §  295.  91St.   Louis   v.   Rutz,    138  U.    S. 

89St.  Louis  v.  Rutz,  138  U.  S.  226,  226,  34  L.  ed.  941,  n  Sup.  Ct.  337. 
34  L.  ed.  941.  U  Sup.  Ct.  337- 


§    296  SURVEYING   AND   BOUNDARIES  302 

riparian  proprietor  extends  only  to  that  line."92  The  court 
further  suggests  that  this  rule  applies  as  well  where  the  land 
was  granted  to  bound  upon  the  river  generally,  as  where  it  was 
granted  according  to  a  survey  run  along  the  bank  by  mean- 
dering and  hence  that  it  applied  to  the  city  of  Keokuk. 

§  296.  Accretion  and  movable  islands — Avulsion. — It  has 
been  held  that,  "the  law  of  title  by  accretion  can  have  no  appli- 
cation to  a  movable  island,  traveling  for  more  than  a  mile, 
and  from  one  state  to  another,  for  its  progress  is  not  imper- 
ceptible, in  a  legal  sense."93  It  is  often  important  to  ascer- 
tain whether  a  change  is  imperceptible  or  sudden  or  percep- 
tible. If  the  former,  the  boundary  line  changes  accordingly; 
if  the  latter  such  boundary  line  remains  as  it  was  before,  and 
it  is  said  in  St.  Louis  v.  Rutz,  that,  "If  the  bed  of  the  stream 
changes  imperceptibly  by  the  gradual  washing  away  of  the 
banks,  the  line  of  the  land  bordering  upon  it  changes  with  it ; 
but  if  the  change  is  by  reason  of  a  freshet,  and  occurs  sud- 
denly, the  line  remains  as  it  was  originally."94  So,  too,  it  is 
the  universal  rule  that  "the  sudden  and  perceptible  loss  of  land 
on  the  premises  conveyed  to  the  plaintiff,  which  was  visible 
in  its  progress,  did  not  deprive  the  grantor  of  the  plaintiff  of 
his  fee  in  the  submerged  land,  nor  change  the  boundaries  of 
the  surveys  on  the  river  front,  as  they  existed  when  the  land 
commenced  to  be  washed  away."95  Where  the  accretion  is 
entirely  to  an  island  it  belongs  wholly  to  the  owner  or  owners 
of  the  island.96  So,  too,  if  the  accretion  to  the  island  increases 
to  such  an  extent  that  the  island  joins  the  main  land  such  ac- 
cretion belongs  to  the  owner  of  the  island.97  But  the  right  to 

92Barney   v.    Keokuk,   94   U.    S.  96Bellefontaine  Imp.  Co.  v.  Nied- 

324,  24  L.  ed.  224.  ringhaus,  181  111.  426,  55  N.  E.  184, 

93St.   Louis  v.   Rutz,   138  U.    S.  72  Am.  St.  269. 

226,  34  L.  ed.  941,  ii  Sup.  Ct.  337-  97Fowler  v.  Wood,  73  Kans.  511, 

94 St.   Louis  v.   Rutz,    138   U.   S.  85  Pac.  763,  117  Am.  St.  534,  6  L.  R. 

226,  34  L.  ed.  941,  ii  Sup.  Ct.  337.  A.  (N.  S.)   162;  Cooley  v.  Golden, 

96St.   Louis   v.    Rutz,   138  U.    S.  117  Mo.  33,  23  S.  W.  100,  21  L.  R. 

226,  34  L.  ed.  941,  ii  Sup.  Ct.  337.  A.  300. 


303  RIPARIAN   RIGHTS  §    297 

accretion  to  an  island  can  not  extend  lengthwise  of  a  stream 
so  as  to  shut  off  adjacent  riparian  proprietors  from  access  to 
such  stream.98 

§  297.  Right  to  build  wharves  and  docks. — While  it  is  gen- 
erally held  that  the  riparian  owner  has  a  right  to  build  wharves 
and  docks  along  the  shore  line  of  a  stream  or  lake  to  navigable 
waters,  yet  this  is  disputed  in  those  states  which  hold  to  the 
rule  that  the  riparian  owners  take  only  to  high-water  mark. 
In  those  states,  like  Iowa  and  Arkansas,  where  the  proprietor 
takes  only  to  high-water  mark  the  "public  authorities  have 
the  right  in  Iowa  to  build  wharves  and  levees  on  the  bank  of 
the  Mississippi  river  below  high-water  mark,  and  make  other 
improvements  thereon,  necessary  to  navigation,  or  public  pas- 
sage by  railroads  or  otherwise,  without  the  consent  of  the 
adjacent  proprietor,  and  without  making  him  compensation."9 
And  the  state  of  Arkansas  holds  to  the  same  rule  and  it  is  said 
by  the  court  in  that  state  that :  "A  riparian  owner  upon  a 
navigable  stream,  deriving  title  from  the  United  States,  takes 
only  to  high-water  mark,  and  not  to  the  middle  of  the  stream, 
the  title  to  the  bed  of  the  stream  being  in  the  state/'1  This 
doctrine  seems  extreme  and  the  natural  consequence  is  that 
the  riparian  proprietor  can  be  shut  off  from  the  stream  or 
water  front,  without  compensation  therefor.  But  as  sug- 
gested at  the  beginning  of  this  section,  the  general  rule  is 
that  the  riparian  proprietor  has  the  right  to  build  wharves  and 
docks  along  the  shore  of  a  lake  or  stream  washing  his  lands. 
Where  it  is  so  held  that  right  can  not  be  taken  away  without 
compensation.2 

98Moore  v.  Farmer,  150  Mo.  33,  aSt.  Louis  I.  M.  &  S.  Ry.  Co.  v. 

56   S.  W.  493,   79   Am.   St.   5i5n;  Ramsey,  53  Ark.  314,  13  S.  W.  931, 

Mobile  Transportation  Co.  v.  Mo-  8  L.  R.  A.  559,  22  Am.  St.  195. 

bile,  153  Ala.  409,  44  So.  976,  127  2Fulton  Light  Co.  v.   State,  200 

Am.  St.  57n.  N.  Y.  400,  94  N.  E.  199,  37  L.  R.  A. 

9»Barney   v.    Keokuk,   94   U.    S.  (N.  S.)  307. 
324,  24  L.  ed.  224. 


§    298  SURVEYING  AND  BOUNDARIES  304 

§  298.  High-water  mark  and  low-water  mark. — The  ex- 
pressions, "high-water  mark"  and  "low-water  mark,"  are  fre- 
quently found  in  descriptions  of  land  in  conveyances  and  in 
the  law  books.  It  is,  therefore,  important  to  know  what  is 
meant  by  such  expressions.  The  line  of  high-water  mark  is 
indicated  generally  by  the  edge  of  or  boundary  between  vege- 
tation and  bare  land.  It  is  said  by  some  of  the  courts  that, 
"The  high-water  mark  of  a  navigable  stream,  the  line  de- 
limiting its  bed  from  its  banks,  is  to  be  found  by  ascertaining 
where  the  presence  and  action  of  water  are  so  usual  and  long 
continued  in  ordinary  years  as  to  mark  upon  the  soil  of  the 
bed  a  character  distinct  from  that  of  the  banks  in  respect  to 
vegetation  and  the  nature  of  the  soil."3  And  again  we  find 
the  Iowa  courts  saying,  "High-water  mark  is  the  line  be- 
tween the  riparian  proprietor  and  the  public — is  to  be  regarded 
as  co-ordinate  with  the  limit  of  the  river  bed."4  So,  too,  it 
has  been  said  by  another  court,  "What  the  river  does  not  oc- 
cupy long  enough  to  revert  from  vegetation,  so  far  as  to  destroy 
its  value  for  agriculture,  is  not  river  bed."5  And  the  Supreme 
Court  of  the  United  States,  in  the  case  of  Howard  v.  Inger- 
soll,  has  laid  down  the  rule  that,  "The  banks  of  a  river  are 
those  elevations  of  land  which  confine  the  waters  when  they 
rise  out  of  the  bed ;  and  the  bed  is  that  soil  usually  so  covered 
by  water  as  to  be  distinguishable  from  the  banks,  produced  by 
the  common  presence  of  an  action  of  flowing  water.  But 
neither  the  line  of  ordinary  high-water  mark,  or  ordinary  low- 
water  mark,  nor  of  a  middle  stage  of  water  can  be  assumed 
as  the  line  dividing  the  bed  from  the  banks.  The  line  is  to  be 
found  by  examining  the  bed  and  banks,  and  ascertaining 
where  the  presence  and  action  of  water  are  so  common  and 

»St.  Louis  I.  M.  &  S.  Ry.  Co.  v.  8St  Louis  I.  M.  S.  Ry  Co.  v. 
Ramsey,  S3  Ark.  314,  13  S.  W.  931,  Ramsey,  53  Ark.  314,  13  S.  W.  931, 
8  L.  R.  A.  559,  22  Am.  St.  195.  8  L.  R.  A.  561,  22  Am.  St.  195. 

*Houghton  v.  Chicago,  D.  &  M. 
Co.,  47  Iowa  370. 


305  RIPARIAN   RIGHTS  §    3OO 

usual,  and  so  long  continued  in  all  ordinary  years,  as  to  mark 
upon  the  soil  of  the  bed  a  character  distinct  from  that  of  the 
banks,  in  respect  to  the  nature  of  the  soil  itself/'8  Also  see 
Railway  Co.  v.  Ramsay.7 

§  299.  Water  must  form  boundary  to  give  riparian  rights. 
— It  is  the  universal  rule  that  to  give  a  party  riparian  rights 
the  water  must  form  the  boundary  of  the  tract  of  land  to 
which  it  is  claimed  riparian  rights  attach.  And  it  is  said  that 
to  entitle  a  party  to  alluvial  formation,  or  land  gained  from  a 
lake  by  alluvium,  the  lake  must  form  a  boundary  of  his  land 
and  if  any  land  lies  between  his  boundary  line  and  the  lake, 
he  can  not  claim  such  formation.8  And  where  the  river  or 
lake  or  other  body  of  water  is  not  mentioned  as  a  boundary  in 
the  patent  or  deed,  but  the  boundary  is  a  permanent  line  fixed 
by  courses  and  distances,  metes  and  monuments  "between  high 
and  low-water  mark/'  the  patentee  was  not  a  riparian  owner.9 

§  300.  Additional  rules  for  apportioning  flats. — We  have 
heretofore  touched  on  the  subject  of  apportioning  flats  among 
the  several  riparian  owners  of  water  fronts  under  certain  con- 
ditions.10 As  is  evident  there  are  many  variations  of  those 
rules  dependent  on  the  surrounding  circumstances.  If  the 
shore  line  of  the  waters  is  straight  the  problem  is  a  simple  one ; 
if  curved  it  becomes  more  complex  though  worked  out  by  the 
same  rule.  One  rule  commonly  followed  is  to  draw  lines  from 
the  point  of  intersection  of  the  boundary  lines  between  ripa- 
rian owners  with  the  old  shore  line  and  at  right  angles  thereto 
to  the  new  shore  line.  If  the  old  shore  line  be  straight  the 
lines  so  run  would  be  a  prolongation  of  the  boundary  lines 
between  riparian  owners.  If  the  shore  be  curved  such  lines 

6Fowler  v.  Hart,  54  U.   S.    (13  9Sweringen  v.  St.  Louis,  151  Mo. 

How.)  381,  14  L.  ed.  186.  348,  52  S.  W.  346. 

7St.  Louis  I.  M.  &  S.  Ry.  Co.  v.  10Emerson    v.    Taylor,   9    Maine 

Ramsey,  53  Ark.  314,  13  S.  W.  931,  42,  23  Am.  Dec.  531 ;  ante  §  254. 
8  L.  R.  A.  561,  22  Am.  St  19$. 

8Bristol  v.  Carroll,  95  HI.  84. 


§    300  SURVEYING   AND   BOUNDARIES  306 

would  necessarily  converge  or  diverge,  as  the  case  might  be. 
It  is  said  in  a  Maine  case  that:  "The  modes  of  ascertaining 
the  side  lines  of  water  lots,  from  the  upland  to  low-water 
mark,  under  the  Colonial  Ordinance  of  1641,  where  they  have 
not  been  otherwise  settled  by  the  parties,  is,  to  draw  a  base 
line  from  one  corner  of  each  lot  to  the  other,  at  the  margin  of 
the  upland,  and  run  a  line  from  each  of  these  corners,  at  right 
angles  with  such  base  line,  to  low- water  mark.  If  the  line  of 
the  shore  is  straight,  the  side  lines  of  the  lots,  thus  drawn  to 
low-water  mark  will  be  identical;  but  if,  by  reason  of  the 
curvature  of  the  shore,  they  either  diverge  from  or  converge 
with  each  other,  the  land  enclosed  by  both  lines,  or  excess,  as 
the  case  may  be,  is  to  be  equally  divided  between  the  adjoin- 
ing proprietors."11  And  that  court  says:  "The  mode  of 
applying  the  principle  is  this :  Draw  a  base  line  from  the  two 
corners  of  each  lot,  where  they  strike  the  shore;  and  from 
those  two  corners  extend  parallel  lines  to  low-water  mark,  at 
right  angles  with  the  base  line.  If  the  line  of  the  shore  be 
curved,  there  will  be  interference  in  running  such  lines,  and 
the  loss  occasioned  by  it  must  be  equally  borne  or  gain  enjoyed 
equally  by  contiguous  owners."12  See  Fig.  73.  Referring  to 
that  figure  A-B,  B-C,  C-D,  D-E,  E-F,  F-G,  G-H,  H-I,  I-J 
represent  the  lines  connecting  the  two  ends  of  the  several  lots. 
The  two  curved  lines  bound  the  flat  land  to  be  divided  be- 
tween the  owners  of  the  several  lots.  The  lines  A-i,  B-i 
represent  the  lines  drawn  at  right  angles  to  A-B;  the  lines 
B-2,  C-2  represent  the  two  lines  drawn  at  right  angles  to  the 
line  B-C.  M,  N,  O,  P,  Q,  R,  S,  T,  U,  etc.,  represent  the  lines 
drawn  midway  between  the  several  perpendicular  lines  and  are 
the  ascertained  boundaries  of  the  several  lots.  This  is  supposed 
to  make  an  equitable  division  of  such  flats  among  the  several 

"Emerson  v.  Taylor,  9  Maine  42,          12Treat   v.    Chipman,   35    Maine. 
23  Am.  Dec.  531.  34. 


307 


RIPARIAN    RIGHTS 


§    300 


-Ficj.73 


§    3OO  SURVEYING  AND  BOUNDARIES  308 

riparian  proprietors.  Compare  this  method  with  that  in 
Northern  Pines  Land  Company  v.  Bigelow.13 

A  similar  rule  was  laid  down  by  the  courts  of  Connecticut 
in  Morris  v.  Beardsley.14  Quoting  from  the  opinion  of  the 
court  in  the  latter  case  we  find:  "A  piece  of  land  on  the  sea 
shore  was  divided  between  two  distributees  of  an  estate  by  a 
line  extending  through  the  upland  to  the  shore  line  but  not 
running  through  the  flats  between  high  and  low-water  mark. 
The  shore  was  a  convex  curve.  Held :  i.  That  the  law  sup- 
plied the  rule  for  the  division  of  the  flats;  2.  That  by  that 
rule  the  line  was  to  run  perpendicularly  to  the  shore  line  from 
the  point  of  division  at  that  line  to  low-water  mark;  3.  That 
in  determining  the  curve  of  the  shore  its  general  trend  for  a 
considerable  distance  was  to  be  considered  omitting  to  notice 
small  indentations  and  projections."  It  will  be  noted  that  the 
object  is  to  make  an  equitable  division  of  the  accretion  or  flats 
among  the  several  riparian  owners.  It  would  seem,  however, 
that  a  more  equitable  division  would  be  made  by  following  the 
rule  laid  down  by  the  Wisconsin  court  in  Northern  Pine  Land 
Co.  v.  Bigelow.15 

The  Supreme  Court  of  Michigan,  in  the  case  of  Clute  v. 
Fisher,  fell  into  an  error  in  the  discussion  of  the  matter  of  the 
extent  of  the  ownership  of  a  riparian  proprietor.  The 
syllabus  in  that  case  reads :  "The  owner  of  a  fractional  sub- 
division of  a  section  meandered  by  the  United  States  survey 
along  the  margin  of  an  inland  lake,  navigable  or  otherwise,  is 
entitled  to  so  much  of  said  lake  as  lies  within  the  lines  of  his 
fractional  subdivision  extended  into  the  lake  to  the  limit  of 
the  entire  subdivision."18  It  will  be  seen  that  the  court  made 

"Northern  Pine  Land  Co.  v.  15Northern  Pine  Land  Co.  v. 

Bigelow,  84  Wis.  157,  54  N.  W.  Bigelow,  84  Wis.  157,  54  N.  W. 

496;  ante  5  254.  496. 

14Morris  v.  Beardsley,  54  Conn.  16Clute  v.  Fisher,  65  Mich.  48,  31 

338,  8  Atl.  139.  N.  W.  614. 


309  RIPARIAN   RIGHTS  §    3OI 

the  mistake  by  going  into  a  matter  that  was  not  really  before 
it.  However,  the  court  thereafter  reversed  the  dictum  of  the 
case.17  We  find  the  court  in  the  latter  case,  saying:  "The 
rule  laid  down  in  Clute  v.  Fisher,  that  the  owner  of  a  frac- 
tional subdivision  owns  the  soil  which  is  included  within  the 
extended  subdivision  lines,  is  inconsistent  with  the  rule  repeat- 
edly laid  down  in  this  state,  that  the  shore  proprietor  owns  to 
the  thread  of  the  center  of  the  stream."  And  further  along 
we  find  that  court  saying:  "It  is  also  inconsistent  with  the 
rule  laid  down  in  Clark  v.  Campau,  19  Mich.  328,  *  *  *, 
that  side  lines  are  to  be  governed  by  the  course  of  the  stream 
and  the  submerged  land  bounded  by  lines  drawn  at  right 
angles  with  the  central  thread,  rather  than  at  right  angles 
with  the  shore  at  the  point  of  departure."18 

§  301.  Division  of  bed  of  round  lake. — Courts  have  had 
some  difficult  questions  to  solve  with  reference  to  the  division 
of  the  bed  of  dried  up  lakes,  between  the  various  riparian 
owners.  So  also,  with  reference  to  the  beds  of  dried  up 
streams.  The  shape  of  the  particular  body  of  water,  whether 
round  or  long;  whether  the  shore  line  be  regular  or  irregular; 
whether  the  bed  gradually  slopes  to  one  central  point  as  the 
deepest  place  in  the  lake;  or  whether  there  may  be  several 
places  in  the  bed  thereof  last  to  dry  up,  thus  forming  independ- 
ent bodies  of  water  as  the  waters  recede,  are  points  which 
courts  will  consider  in  making  an  "equitable  division"  of  the 
bed.  As  usual  courts  do  not  agree  on  the  best  method  to 
pursue  in  a  given  case.  The  object  to  be  sought  always  is  to 
divide  the  bed  as  to  equitably  give  to  each  owner  of  shore  his 
rightful  part  of  the  made  land  or  dried  up  bed.  There  are 
many  interesting  cases  and  some  of  them  subject  to  criticism, 

17Grand  Rapids  Ice  &c.  Co.  v.  102  Mich.  227,  60  N.  W.  681,  47 
South  Grand  Rapids  Ice  &c.  Co.,  Am.  St.  516. 

18Clark  v.  Campau,  19  Mich.  325. 


§  30i 


SURVEYING  AND  BOUNDARIES 


310 


as  one  might  think,  because  they  apparently  fail  to  accomplish 
the  object  sought. 

As  an  illustration  of  the  different  views  of  courts  we  cite 
the  case  of  Scheifert  v.  Briegel  decided  by  the  Minnesota 
court.19  In  that  case  the  lower  court  held  to  one  view  and 
the  appellate  court  to  another.  The  diagrams  which  illustrate 
the  two  positions  taken  are  here  reproduced  substantially. 


Fiq.  74 


Figs.  74  and  75.  Fig.  74  represents  the  result  of  the  division 
made  by  the  lower  court  and  Fig.  75  the  suggestions  made  by 
the  Supreme  Court.  While  the  appellate  court  does  not  fi- 
nally decide  Fig.  75  to  be  the  correct  division  yet  it  suggests 
something  along  that  line.  With  all  due  respect  to  the  latter 

19 Scheifert  v.   Briegel,  90   Minn. 
125,  96  N.  W.  44- 


RIPARIAN    RIGHTS 


§    301 


body  we  are  inclined  to  agree  with  the  court  below.  To  our 
mind  it  is  more  equitable,  all  things  considered,  and  more 
practical.  Still  there  are  some  excellent  suggestions  made  by 
the  higher  court. 

The  body  of  water  originally  and  at  the  time  of  the  gov- 
ernment survey  covered  parts  of  several  sections,  namely, 
sections  17,  18,  19  and  20,  township  112,  range  31,  and  sec- 
tions 12  and  13,  township  112,  range  32.  Thereafter  the  lake 
dried  up  and  left  several  hundred  acres  of  land  to  be  divided 


Fiq.75 


among  the  several  riparian  owners.  It  will  be  seen  by  an 
examination  of  the  diagrams  that  the  body  of  water  originally 
was  nearly  round  though  there  were  several  deep  indentations 
and  sharp  projections.  It  was  these  indentations  and  projec- 
tions which  perplexed  the  surveyors  and  the  courts.  We 
quote  from  the  opinion:  "The  trial  court  divided  the  land 


§    3O1  SURVEYING  AND  BOUNDARIES  312 

in  accordance  with  the  plat,  (Fig.  74),  and  for  the  purpose  of 
division  established  three  central  points,  C,  D  and  E,  connect- 
ing them  with  center  lines,  marked  upon  the  plat  (iCL,  2CL, 
and  3CL.)  Having  established  these  center  points  and  center 
lines,  the  court  divided  the  land  among  the  several  owners  by 
extending  the  side  lines  of  the  several  tracts  from  the  point 
where  they  crossed  the  meander  line  to  points  (C,  D  and  E,) 
and  to  points  on  the  center  lines  as  indicated  on  the  plat/' 

While  the  Supreme  Court  does  not  undertake  to  decide  the 
question  finally  according  to  Fig.  75,  it  does  suggest  if  the 
facts  are  as  that  court  understands  them  to  be  the  division  as 
suggested  in  that  figure  might  be  made  by  the  trial  court  on  a 
second  trial.  The  court  says:  "We  have  attempted  only  to 
lay  down  certain  principles  which  may  be  applied  in  case  the 
facts  shall  prove  to  be  as  we  have  assumed  them  to  be.  Upon 
a  new  trial  evidence  should  be  taken  as  to  the  history  of  the 
lake,  and  the  division  worked  out  as  near  as  may  be  in  accord- 
ance with  the  principles  herein  defined."20 

There  are  several  things  we  desire  to  criticise  about  the 
suggestions  contained  in  Fig.  75.  First,  the  boundary  be- 
tween lot  4,  section  17,  and  lot  10,  section  18,  insofar  as  the 
"made  land"  is  concerned,  is  found  by  drawing  a  line  from  the 
point  where  the  boundary  line  between  the  original  lots  inter- 
sects the  quarter-line  east  and  west,  to  the  center  of  the  lake, 
C.  While  this  makes  a  fairly  equitable  division  yet  it  leaves 
the  boundary  line  between  the  two  lots  irregular  and  in  a  way 
unsatisfactory.  The  same  may  be  said  of  lots  10  and  n  in 
section  19,  and  lots  i  and  2  in  section  20.  The  latter  is  not 
so  bad  as  the  others  and  would  not  be  subject  to  much  criticism. 
Again  lot  i  in  section  13,  and  lots  n,  12  and  14,  in  section  12, 
are  real  problems.  This  is  indicated  by  an  examination  of 
both  figures.  In  Fig.  75  the  point  D  is  taken  to  be  the  center 

20Scheifert  v.  Briegel,  90  Minn. 
125,  96  N.  W.  44. 


313  RIPARIAN   RIGHTS  §    3O2 

of  the  bay  and  lines  are  run  from  such  center  to  the  point 
where  the  boundary  lines  intersect  the  original  margin  of  the 
lake.  This  leaves  an  irregular  tract,  A  D  B  C,  which  is  not 
apportioned  to  any  lot  or  lots.  The  court  suggests  that  this 
irregular  tract  of  land,  less  the  sharp  projection  at  O,  be  di- 
vided between  lots  i,  12  and  14,  "according  to  their  acreage." 
This  might  be  equitable  and  still  quite  unsatisfactory.  In  fact, 
any  division  that  may  be  made  will  not  suit  everybody.  It 
would  seem  to  the  author,  however,  that  something  along  the 
line  of  Fig.  74  would  be  more  satisfactory  as  a  whole. 

We  have  omitted  the  acreages  and  distances  in  the  diagrams 
as  unnecessary  in  the  illustrations.  The  diagrams  represent 
the  distances  fairly  correct.  The  irregular  line,  "M  L,"  repre- 
sents the  original  meander  line.  The  lake  is  now  dry.  There 
was  no  evidence  given  at  the  trial  as  to  how  the  points  C, 
D  and  E,  Fig.  74,  were  fixed.  Nor  was  there  any  evidence 
as  to  where  the  center  of  the  lake  was  or  where  the  deepest  part 
was  located.  Nor  was  there  any  evidence  as  to  whether  or  not 
the  bed  had  a  gradual  slope  to  a  common  point  approximately 
in  the  center  or  whether  there  were  several  deep  places  in  the 
bed,  forming  individual  lakes  as  the  waters  receded.  It  is  also 
true  that  if  partitioned  according  to  Fig.  74,  lot  n  in  section 
1 8,  and  lot  10  in  section  19,  would  have  a  disproportionate 
part  of  the  bed  of  the  lake  and  this  ought  to  be  avoided  if 
possible.  On  the  whole  we  like  the  general  idea  in  Fig.  74, 
and  prefer  it  to  Fig.  75. 

§  302.  Division  of  dock  privileges  distinguished  between 
division  of  bed  of  lake. — It  seems  that  some  of  the  cases  make 
a  distinction  between  the  division  of  dock  privileges  between 
adjacent  owners  of  water  front  and  the  division  of  the  dried 
up  body  of  water.  This  may  well  be.  In  the  case  of  the  di- 
vision of  a  line  between  adjacent  wharves,  the  main  question 
is  to  divide  the  line  of  navigability  between  the  adjacent 
owners  of  shore  so  as  to  make  an  equitable  division  thereof. 


§    3°2  SURVEYING  AND  BOUNDARIES  314 

The  line  of  division  of  dock  privileges  may  or  may  not  be  in 
the  same  place  as  the  division  line  for  dry  bed  of  lake,  depend- 
ing on  circumstances.  The  Michigan  court,  in  the  case  of 
Jones  v.  Lee,21  says  with  reference  to  this  matter:  "But  as 
this  lake  is  navigable  and  large,  the  riparian  rights,  (which 
for  all  valuable  purposes  of  a  possessory  nature,  must  be  con- 
fined with  reference  to  the  paramount  rights  of  navigation) 
depend  on  those  principles  which  apply  where  immediate  de- 
pendence on  the  filum  aquae  is  impracticable.  This  was  fully 
recognized  in  Rice  v.  Ruddiman,22  and  Lincoln  v.  Davis.23 
The  chief  value  of  riparian  rights,  in  such  case,  must  refer 
to  the  access  to  navigation  and  use  with  reference  to  it  of  the 
space  near  the  shore,  and  not  to  the  area  of  deep  water  which 
can  not  be  apportioned,  as  was  indicated  in  those  cases  and 
others  here  and  elsewhere." 

For  an  excellent  illustration  of  the  manner  of  dividing  the 
line  of  navigable  water  in  a  large  bay  between  shore  pro- 
prietors, the  reader  is  referred  to  the  case  of  Northern  Pine 
Land  Co.  v.  Bigelow.24  That  case  is  fully  discussed  in  section 
254.  We  think  the  rule  there  laid  down  is  sound,  equitable 
and  practicable.  Had  the  problem  there  been  the  division  of 
the  bed  of  a  former  lake,  now  left  dry  by  the  recession  of  the 
waters,  a  different  problem  would  be  presented,  and  hence  a 
different  method  of  division  might  be  required  in  order  to 
equitably  divide  such  bed  between  the  various  riparian  owners. 

§  303.  State  owns  the  beds  of  navigable  streams  and 
lakes. — In  some  states  it  is  held  that  the  state  owns  the  beds 
of  both  lakes  and  streams  that  are  navigable,  as  we  have 
already  seen.  In  other  states  it  is  held  that  the  riparian  owner 

21Jones  v.  Lee,  77  Mich.  35,  43  24Northern  Pine  Land  Co.  v. 
N.  W.  856.  Bigelow,  84  Wis.  157,  54  N.  W. 

22Rice   v.    Ruddiman,    10    Mich.      496. 

125. 

"Lincoln  v.  Davis,  53  Mich.  375, 
19  N.  W.  103. 


315  RIPARIAN    RIGHTS  §    304 

owns  to  the  center  of  the  stream  subject  to  the  public  rights 
therein.  Unless  otherwise  provided  by  articles  of  admission 
as  a  state,  the  state  owns  the  beds  of  navigable  lakes  and 
rivers  within  its  borders.25  And  the  right  of  the  state  in  the 
shores  of  lakes  and  rivers  may  be  granted  to  private  individ- 
uals.26 And  under  the  laws  of  the  United  States  a  grant  of 
land  bordering  on  navigable  waters  carries  title  to  ordinary 
high-water  mark.27  And  it  is  said:  "Upon  the  question  of 
how  far  title  extends  of  the  owner  of  lands  bounded  on  a  river 
actually  navigable,  but  above  the  ebb  and  flow  of  the  tide, 
there  is  diversity  in  the  laws  of  the  different  states;  but  the 
prevailing  doctrine  now  is  that  he  does  not,  as  in  England, 
own  to  the  thread  of  the  stream."28  But  see  the  rule  in 
Illinois  and  other  states.29  And  the  rights  of  riparian  owners 
are  governed  by  the  laws  of  the  state  in  which  the  land  is 
situated.30 

§  304.  Meander  line  established  by  gross  fraud  or  mis- 
take.— It  will  be  found  that  occasionally,  the  meander  line  was 
established  by  the  government  surveyor  fraudulently  or  by  mis- 
take in  a  place  other  than  the  shore  line  of  the  body  of  water, 
and  it  is  said  that  where  a  meander  line  is  established  so  far 
from  the  shore  line  as  to  indicate  gross  error  or  fraud  and  the 
government  has  done  nothing  to  part  with  its  title  to  the  un- 
surveyed  land,  it  may  cause  a  resurvey  of  the  same  and  dis- 
pose of  it  as  government  land.  In  the  case  of  Barringer  v. 
Davis,  the  unsurveyed  land  was  held  to  be  a  part  of  the  origi- 
nal grant.31  Referring  to  Fig.  76,  the  diagram  represents  a 

25United    States   v.   Ashton,    170  28Shively  v.  Bowlby,  152  U.  S.  i, 

Fed.  509;  Shively  v.  Bowlby,  152  U.  38  L.  ed.  381,  14  Sup.  Ct.  548. 

S.  i,  38  L.  ed.  381,  14  Sup.  Ct.  548.  29St.   Louis   v.   Rutz,    138   U.    S. 

26 Shively  v.  Bowlby,  152  U.  S.  i,  226,  34  L.  ed.  941,  n  Sup.  Ct.  337. 

38  L.  ed.  381,  14  Sup.  Ct.  548.  30Shively  v.  Bowlby,  152  U.  S.  i, 

27Shively  v.  Bowlby,  152  U.  S.  i,  38  L.  ed.  381,  14  Sup.  Ct.  548. 

38  L.  ed.  381,  14  Sup.  Ct.  548.  31Barringer   v.   Davis,    141    Iowa 

419,  120  N.  W.  65. 


§  304 


SURVEYING  AND   BOUNDARIES 


316 


part  of  section  27-97-35,  surveyed  in  the  year  1857.  The 
east  half  of  the  section  is  fractional.  The  original  survey  and 
plat  showed  the  meander  line  of  a  lake  to  be  as  marked  on  the 
diagram,  "meander  line,"  and  gave  lots  i,  2,  3  and  4.  This 
line  was  never,  in  fact,  the  real  shore  line.  The  actual  shore 


Fiq.76 


line  is  represented  on  the  diagram  as,  "actual  shore  line,"  thus 
leaving  a  large  amount  of  land  between  the  old  and  new  lines. 
Upon  application  and  many  years  subsequent  to  the  original 
survey,  the  government  made  a  resurvey  of  the  section  with 
the  result  as  indicated  on  the  plan.  The  resurvey  was  platted, 


317  RIPARIAN   RIGHTS  §    304 

showing  additional  lots  5,  6  and  7,  and  the  new  meander  line, 
marked  on  the  diagram  as  "actual  shore  line."  The  contro- 
versy was  as  to  that  part  of  the  land  marked  "lot  5."  This  was 
claimed  by  the  owner  of  lots  i  and  2,  and  also  by  a  party  who 
secured  a  patent  from  the  government  after  the  resurvey.  It 
was  held  that  the  original  patentee,  under  the  "peculiar"  cir- 
cumstances of  the  case,  took  the  land  to  the  lake  shore.  The 
court  on  page  427,  says :  "The  meander  line  is  not  estab- 
lished as  a  boundary,  but  a  line  drawn  from  a  point  to  a  point 
along  the  shore,  disregarding  its  minor  sinuosities  and  is  used, 
not  to  mark  the  limits  of  the  tract  of  land  adjacent  thereto, 
but  simply  as  a  basis  from  which  to  measure  such  tract  and 
determine  the  number  of  acres  for  which  the  government  will 
demand  payment,  and  when  payment  for  such  acreage  is  made, 
the  title  of  the  purchaser  extends  to  the  water's  edge,  even 
though  in  places  there  be  small  unmeasured  tracts  lying  outside 
of  the  meander  line."32  In  Barringer  v.  Davis  at  page  428, 
the  court  further  says :  "This  rule  is  subject  to  the  exception 
that  if  by  a  mistake  or  fraud  in  the  survey,  a  meander  line  be 
run  where  no  lake  or  stream  calling  for  such  expedient  exists, 
or  if  it  be  established  at  such  excessive  distance  from  the  actual 
shore  as  to  leave  between  its  course  and  the  shore  an  excess 
of  unsurveyed  land  so  great  as  to  clearly  and  palpably  indicate 
fraud  or  mistake  in  the  survey,  then  the  courts  will,  for  equit- 
able reasons,  treat  the  meander  line  as  a  boundary."33  And 
it  is  conceded  that  the  government  may,  in  such  case,  order  a 
resurvey  of  such  land.34  So,  too,  we  find  in  the  Barringer 
case  at  page  428,  "And  where  such  mistake  has  occurred,  and 
the  United  States  has  not  in  any  way  parted  with  its  rights  to 

32St.  Paul  &  Pacific  Ry.   Co.  v.  33Barringer   v.    Davis,   141    Iowa 

Schurmeier,  74  U.  S.  272,  19  L.  ed.  419,  120  N.  W.  65. 

74;   Hardin  v.  Jordan,   140  U.   S.  34Mitchell   v.    Smale,    140  U.    S. 

380,  35  L.  ed.  428,  ii  Sup.  Ct.  838;  406,  35  L.  ed.  442,  n  Sup.  Ct.  840. 
Everson  v.  Waseca,  44  Minn.  247, 
46  N.  W.  405. 


§    3°5  SURVEYING  AND  BOUNDARIES  318 

the  land  so  left  unsurveyed,  the  proper  department  of  the  gov- 
ernment may  cause  the  survey  to  be  made  and  dispose  of  such 
tracts  as  portions  of  the  public  domain.  But  where  the  United 
States  has  parted  with  its  title,  a  new  survey  can  have  no  effect 
upon  the  rights  of  those  holding  under  prior  grants  or 
patents."  We  might  suggest  that  the  reading  of  the  original 
grant  in  the  Barringer  case  clearly  showed  an  intention  to 
transfer  all  of  its  rights  to  the  water  line.35 

§  305.  Division  of  cove  flats.— The  division  of  cove  flats 
is  subject  to  the  same  general  rule  as  applies  to  the  division  of 
accretion,  and  the  owners  of  land  bordering  on  a  cove,  where 
the  sea  ebbs  and  flows,  who  are  entitled,  under  the  colony 
ordinance  of  1641,  to  the  adjoining  flats  "to  the  low- water 
mark,"  can  not  always  claim  the  flats  in  the  direction  of  the 
exterior  lines  of  their  respective  uplands,  but  only  in  the  direc- 
tion toward  low-water  mark  from  the  two  corners  of  the  up- 
land at  high-water  mark.36  In  other  words  the  boundary  line 
of  low-water  mark  must  be  divided  between  the  several  ripa- 
rian owners  in  proportion  to  their  respective  holdings  at  high- 
water  mark.  This  is  supposed  to  make  an  equitable  division 
of  the  flats.  For  instance  if  the  length  of  the  line  of  low-water 
mark  is  one  hundred  rods  and  the  length  of  the  line  of  high- 
water  mark  is  two  hundred  rods,  then  each  owner  would  be 
entitled  to  one-half  of  the  width  of  his  high-water  mark 
holding.  If  the  water  should  permanently  settle  away  and 
the  flats  become  permanently  dry  the  division  would  be  made 
in  like  manner. 

In  order  that  the  reader  get  a  clear  understanding  of  the 
meaning,  we  have  drawn  two  diagrams,  illustrating  a  cove, 
with  high-water  mark  and  low-water  mark  borders.  See 
Figs.  77  and  78.  The  line  AB  represents  the  border  of  low- 
water  mark  and  ACB  represents  the  border  of  high-water 

35Barringer  v.  Davis,  141  Iowa.  36Rust  v.  Boston  Mill  Co.,  6 
428,  120  N.  W.  65.  Pick.  (Mass.)  158. 


319 


RIPARIAN   RIGHTS 


,-t-ow^Water  Mark 

'    '        '  "^ "" '  -  r 


§    305 


Fiq.77 


§    305  SURVEYING   AND   BOUNDARIES  32O 

mark.  There  are  several  lots  represented  thereon  which,  we 
will  suppose,  are  owned  by  as  many  persons.  For  convenience 
we  will  assume  the  length  of  low-water  mark  to  be  two  thou- 
sand feet  and  the  length  of  high-water  mark  to  be  four  thou- 
sand feet.  According  to  the  doctrine  laid  down  the  division 
lines  between  the  several  owners  will  take  the  directions  given 
on  the  two  figures  depending  on  the  locations  of  the  lots.  The 
Rust  case  is  one  of  the  early  cases  decided  in  this  country  and 
it  has  been  frequently  cited  by  the  courts  as  laying  down 
proper  rules  for  the  division  of  shore  line  privileges,  dock 
lines  boundaries,  division  of  alluvium,  and  of  the  beds  of  lakes 
left  bare  by  the  recession  of  the  waters. 

A  modification  of  this  rule  is  found  in  the  case  of  Walker 
v.  Boston  &  M.  Ry.  Co.,  3  Cush.  (Mass.)  i,  where  it  is  said: 
"Where  a  cove,  inlet,  or  estuary,  is  so  irregular  and  varies  in 
outline,  and  so  traversed  by  crooked  and  meandering  creeks 
and  channels,  from  which  the  sea  does  not  ebb,  that,  in  divid- 
ing the  flats  therein,  among  conterminous  proprietors,  it  is  im- 
possible to  apply  any  of  the  rules,  which  have  been  applied  in 
other  cases;  the  most  that  can  be  done  is  to  take  the  Colonial 
Ordinance  of  1641,  and  apply  it  according  to  its  true  spirit, 
and,  by  as  near  an  approximation  as  practicable  to  the  rules 
which  have  been  judicially  established,  to  lay  down  such  a 
line  of  division,  as  to  give  each  riparian  proprietor  his  fair 
and  equal  share."  And  the  same  case  lays  down  the  rule: 
"A  natural  channel  or  creek,  in  which  the  sea  does  not  ebb,  is 
a  boundary  to  a  claim  of  flats  in  that  direction."  And  further 
discussing  the  question  we  find  the  court  saying:  "On  the 
estuary  of  a  river,  or  arm  of  the  sea,  through  which  there  is 
a  channel,  the  lines  of  flats  will  ordinarily  run  towards  such 
channel,  and  in  the  most  direct  course."37  In  line  with  these 
suggestions  the  court  will  receive  evidence  of  the  locations  of 

"Walker  v.  Boston  &  M.  Ry.  Co., 
3  Cush.   (Mass.)    i. 


321  RIPARIAN   RIGHTS  §    305 

channels  or  currents  in  waters  covering  flats  to  the  end  that 
a  proper  division  of  such  flats  may  be  made.38 

Referring  to  Fig.  79,  the  line  AB  represents  high-water 
mark ;  CD  the  shortest  distance  across  the  mouth  of  the  cove ; 
BCFE  one  channel;  ADE  another  channel.  The  plaintiff 
owned  the  lots  marked,  "Walker,"  of  which  GH  was  the 
shore  line.  The  question  was  as  to  how  to  divide  the  flats  so 
as  to  give  the  plaintiff  his  proportionate  share.  It  was  held 
that  GHIJ  was  the  proper  division  of  that  part  of  the  cove 
between  the  mouth  and  the  upland  to  be  parted  off  to  the 
plaintiff.  Held,  also,  that  GHKL  was  an  improper  division. 
The  court  also  states  that  Walker  could  have  further  division 
of  the  flats  without  the  mouth  of  the  cove  by  dividing  line 
CFE  in  proportion  to  line  DC,  giving  him  an  amount  propor- 
tioned to  IJ.  He  would  be  entitled  to  the  additional  tract, 
IJFO. 

And  on  the  question  of  making  a  further  division  of  that 
part  of  the  flats  lying  without  the  mouth  of  the  cove,  the 
court,  at  page  25  says:  "We  see  no  reason  why,  upon  the 
same  principle  of  giving  an  equal  division,  these  same  propor- 
tions should  not  widen  and  spread  in  proportion,  below  the 
mouth  of  the  cove,  to  low-water  mark."  And  the  court  adds : 
"This  mode  of  ascertaining  the  extent  of  the  petitioner's  flats 
may  be  liable  to  objections;  we  know  no  mode  of  dividing 
flats,  which  would  be  free  from  objections."39  It  is  evident 
from  the  cases  which  have  been  reported  and  digested  that,  in 
many  cases,  no  set  rule  can  be  applied  for  the  division  of 
flats,  alluvium,  etc.,  among  riparian  owners.  The  surveyor 
and  lawyer  must  exercise  their  best  judgments  in  devising  an 
equitable  method  under  the  particular  circumstances  of  the 
case.  All  of  the  evidence  must  be  considered. 

38Walker  v.  Boston  &  M.  Ry.  Co.,          39Walker  v.  Boston  &  M.  Ry.  Co.. 
3  Cush.   (Mass.)    i.  3  Cush.   (Mass.)    i. 


§  306 


SURVEYING  AND  BOUNDARIES 


322 


§  306.  Rules  for  division  of  shore  line. — As  already  sug- 
gested in  this  chapter  some  of  the  courts  have  undertaken  to 
formulate  rules  for  the  division  of  shore  line  rights  and  accre- 


Rq.  79 


323  RIPARIAN   RIGHTS  §    306 

tion  privileges.  The  Massachusetts  court  has  laid  down  the 
following  rule  for  the  division  of  shore  lines:  First,  The 
dividing  lines  are  generally  to  be  drawn  in  the  most  direct 
course  from  high-water  mark  toward  low-water  mark. 
Second,  Where  it  is  practicable,  each  proprietor  is  entitled  to 
the  flats  in  front  of  his  upland  of  the  same  width  at  low-water 
mark  as  at  high-water  mark.  Third,  Which  is  perhaps  the 
fundamental  rule,  underlying  and  controlling  all  others,  the 
flats  are  to  be  so  divided  as  to  give  to  each  parcel  a  width  at 
its  outer  or  seaward  end  proportional  to  that  which  it  has  at 
high-water  mark.40  And  the  court  in  that  case  speaking 
through  Gray,  J.,  says  at  page  86 :  "The  appropriate  mode  of 
division  is  to  give  to  each  proprietor  a  front  line  at  extreme 
low-water  mark  proportionate  in  length  to  his  shore  line  at 
ordinary  high-water  mark  and  to  run  the  division  lines  of  the 
flats  straight  from  high-water  mark." 

Referring  to  Fig.  80,  the  court,  in  the  Wonson  case,  held 
the  proper  division  to  be  made  is  as  therein  indicated.  X,  A, 
B,  C,  Y  represents  high-water  mark:  HDEFG  represents 
extreme  low- water  mark;  HY  is  a  mean  between  the  flats  in 
this  cove  and  the  one  to  right,  and  GX  a  mean  between  the 
flats  of  the  cove  at  bar  and  the  one  to  the  left.  The  division 
lines  were  ordered  run  to  points  on  the  line  of  extreme  low- 
water  mark  in  proportion  to  the  shore  line  of.  each  proprietor 
at  high-water  mark.  AF,  BE  and  CD  represent  the  divisional 
lines.  The  point  F  was  fixed  by  proportion  as  follows:  GF 
:  AX  : :  GFEDH  :  XABCY.  Similarly  were  the  points  E  and 
D  fixed.  This  gives  to  each  riparian  owner  an  equitable  por- 
tion of  the  "extreme  low-water  mark"  line.  That  is  in  such 
proportion  as  the  whole  line  of  low-water  mark  bears  to  the 
whole  line  of  high-water  mark. 

40Wonson  v.   Wonson,   14  Allen 
(Mass.)  71. 


§  307 


SURVEYING  AND   BOUNDARIES 


324 


§  3°7-  Irregular  lines — Islands — Straight  lines. — Bellows, 
J.,  in  a  New  Hampshire  case  for  a  division  of  accretion  lays 
down  this  rule :  "Give  to  each  shore  owner  a  share  of  the 
new  shore  line  in  proportion  to  what  he  held  in  the  old  shore 
line  and  complete  the  division  of  the  land  by  running  a  line 
from  the  boundary  between  the  parties  on  the  old  shore  to  the 
point  thus  ascertained  on  the  new."41  This  is  the  general 
G 


S  Wonson 


Fiq.80 


rule,  as  we  have  seen  and  applicable  to  most  of  the  cases, 
except  where  there  are  many  deep  indentations  and  projec- 
tions along  the  shore  lines.  Where  there  are  many  deep  in- 
dentations and  projections  so  that  the  original  shore  line  be 
irregular  it  would  be  inequitable  and  impracticable  to  measure 

41Batchelder  v.  Keniston,  51   N. 
H.  496,  12  Am.  Rep.  143. 


325  RIPARIAN   RIGHTS  §    308 

the  whole  shore  line.  In  such  cases  the  courts  have  quite 
generally  laid  down  the  rule  of  fixing  points  on  the  headlands 
along  the  shore  and  measuring  in  a  direct  line  between  such 
points.42  And  the  courts  say  that  the  dominant  "rule  is  that 
each  must  have  his  due  proportion  of  the  line  bounding  nav- 
igability and  a  course  of  access  to  it  from  the  shore  exclusive 
of  every  other  owner,  and  that  all  rules  for  apportionment  or 
division  are  subject  to  such  modification  as  may  be  necessary 
to  accomplish  substantially  this  result."43 

§  308.  Islands. — In  the  event  an  island  is  formed  by  accre- 
tion in  the  middle  of  a  stream  and  an  inquiry  arises  as  to 
whom  the  island  belongs,  circumstances  will  determine  the  di- 
vision to  be  made.  Ordinarily  in  nonnavigable,  and,  in  many 
cases  of  navigable  streams,  the  riparian  owner  owns  to  the 
central  thread  of  the  main  channel.44  If  the  island  be  formed 
in  the  "thread  of  the  stream,"  and  different  people  own  the 
opposite  banks  such  island  will  be  divided  between  the  riparian 
owners  on  opposite  banks  of  the  stream.  If  the  thread  of  the 
stream,  prolonged,  passed  through  the  center  of  the  island 
then  such  line  will  determine  such  boundary  division.  And 
it  is  said  in  a  Massachusetts  case  that  "When  an  island  is  so 
formed  in  the  bed  of  a  river  as  to  divide  the  channel  and  form 
partly  on  each  side  of  the  channel  of  the  river,  if  the  land  on 
the  opposite  sides  of  the  river  belongs  to  different  proprietors, 
the  island  will  be  divided  according  to  the  original  thread  of 
the  river  between  them."45  This  is  so,  only  when  the  island 
is  in  the  thread  of  the  stream.  Should  the  island  be  formed 
wholly  on  one  side  of  the  stream,  that  is  between  the  thread 

42Northern    Pine    Land    Co.    v.  Co.,  122  Wis.  519,  100  N.  W.  993, 

Bigelow,  84  Wis.    157,   54   N.   W.  106  L.  R.  A.  1000. 

496;  Thomas  v.  Ashland  &c.  R.  Co.  44Franzini  v.  Layland,   120  Wis. 

122  Wis.  519,   100  N.  W.  993,  106  72,  97  N.  W.  409. 

L.  R.  A.  looo.  *5Deer field    v.    Arms,    17    Pick. 

"Thomas    v.    Ashland    &c.     R.  (Mass.)  41,  28  Am.  Dec.  276. 


§  308 


SURVEYING  AND  BOUNDARIES 


326 


and  one  shore,  then  it  will  belong  to  the  riparian  owner  on 
that  side  of  the  shore. 

§  3o8a.  Straight  lines.  —  Where  the  high-water  line  is  sub- 
stantially a  straight  line  a  riparian  proprietor's  boundary  lines 
should  be  extended  at  right  angles  with  such  shore  line  but 
where  the  line  of  high-water  mark  is  not  straight,  the  exten- 
sion of  shore  front  must  be  divided  proportionally  among  the 
riparian  owners.46  On  principle,  these  distinctions  are  sound. 

§  309.  Division  by  shortest  distance  to  stream.  —  Some  jur- 
isdictions have  established  a  rule  for  finding  the  division  line 
between  two  adjoining  riparian  owners  by  drawing  a  line  from 
the  point  of  division  at  the  water's  edge  to  the  center  of  the 
stream  at  the  shortest  distance.  This  method  is  subject  to 
criticism  and  is  not  to  be  recommended  as  it  sometimes  works 
out  very  inequitably.  As  an  illustration  of  the  method  the 


Rq.81 


Plaintiffs  Land 


Defendant's    Land 


reader  is  referred  to  the  case  of  Newton  v.  Eddy.47  Referring 
to  Fig.  8 1,  it  will  be  noted  that  B  represents  the  location  of  a 
butternut  tree  at  the  corner  of  the  lands  of  the  plaintiff  and 


46Delaware,  L.  &  W.  Ry.  Co.  v. 

Harmon,  37  N.  J.  L.  276. 


47Newton  v.  Eddy,  23  Vt.  319. 


327        -TV  RIPARIAN   RIGHTS  §    309 

defendant.  BC  represents  the  shore  of  the  creek  as  it  formerly 
ran  at  the  time  that  corner  was  established.  The  creek  had 
changed  its  course  by  washing  away  the  banks  and  at  the  time 
of  the  litigation  ran  as  indicated  on  the  diagram.  Point  A 
is  the  point  in  the  middle  of  the  stream  nearest  to  the  corner 
B  and  before  the  creek  changed,  under  the  law  of  that  state, 
was  the  corner  between  the  lands  of  the  plaintiff  and  defend- 
ant. After  the  creek  had  changed  its  course  a  dispute  arose 
between  plaintiff  and  defendant  over  the  ownership  of  the 
alluvium  marked  "O."  Both  parties  claimed  that  strip.  Under 
the  rule  in  that  state,  point  G  becomes  the  common  corner  of 
the  lands  of  plaintiff  and  defendant,  or  the  center  of  the  stream 
at  the  nearest  point  to  the  butternut  tree  at  the  marked  cor- 
ner. And  the  boundary  between  plaintiff's  and  defendant's 
lands,  after  the  change  of  the  stream,  is  GB  and  BD.  Thus 
the  defendant  owns  alluvium  resting  on  land  formerly  owned 
by  plaintiff.  This  is  unjust  and  the  principle  is  criticised 
sharply  by  Redfield,  J.,  who  dissents  from  the  majority  opinion 
of  the  court.  Held  defendant  owned  the  alluvial  "O."  Of 
course  he  would  also  own  the  alluvium  lying  east  of  his  lands. 

The  court  lays  down  the  rule  in  the  Eddy  case:  "Where 
there  are  adjoining  proprietors  of  land  upon  the  same  side  of 
the  stream  of  water,  and  they  are  each  bounded  upon  the 
stream,  and  the  corner  between  them,  upon  the  stream,  is 
indicated  by  a  fixed  monument  upon  the  bank  of  the  stream, 
the  true  corner  is  at  that  point  in  the  center  of  the  stream, 
which  is  nearest  the  monument,  and  its  direction  from  the 
monument  will  be  changed  by  the  changes  of  the  course  of 
the  stream."48 

The  case  of  Blodgett  v.  Davis49  lays  down  a  modification 
of  the  "cove  rule,"  and  is  yet  governed  by  it.  The  plaintiff 

48Newton  v.   Eddy,  23   Vt.  319;          49Blodgett  &  Davis  v.  Peters,  87 
Hubbard  v.   Manwell,  60  Vt.  235,      Mich.  498,  49  N.  W.  917. 
14  Atl.  693,  60  Am.  St.  no,  13  Ann. 
Cas.  50. 


§    309  SURVEYING   AND  BOUNDARIES  328 

and  defendant  were  owners  of  land  on  Green  Bay.  Both 
owned  sawmills  located  on  their  respective  lots.  Both  had 
built  wharves  several  hundred  feet  into  the  bay  to  navigable 
water.  Plaintiff  claimed  defendant  had  built  his  wharf  too  far 
to  the  north.  Action  to  restrain  him  from  continuing  with 
the  building  thereof  was  brought.  The  line  DC,  Fig.  82,  is  the 
boundary  between  their  lots  on  the  upland.  A  and  B  are 
headlands.  FJ  is  the  line  of  navigability.  It  is  required  to  run 
CE,  the  proper  division  line  between  the  rights  of  the  parties 
to  the  shallow  waters  to  the  line  of  navigation.  The  case  was 
tried  before  the  lower  court  and  an  appeal  from  the  decision 
taken.  Cause  reversed  with  instructions  to  run  division  line 
as  herein  set  forth.  Erect  IA  perpendicular  to  shore  line  to 
the  left  of  A  at  A.  Erect  AK  perpendicular  to  shore  line  to 
right  of  A  at  A.  Bisect  the  angle  and  run  AF  to  line  of  nav- 
igation. Erect  LB  perpendicular  to  shore  line  to  the  left  of 
B  at  B.  Erect  BM  perpendicular  to  shore  line  to  the  right  of 
B  at  B.  Bisect  the  angle  and  run  BJ  to  line  of  navigation. 
FJ  is  the  line  of  navigation  to  be  divided  between  plaintiff, 
defendant,  and  one  O.  The  upper  court  instructed  the  lower 
court  to  cause  the  shore  line  from  A  to  B  to  be  measured; 
likewise  the  line  of  navigation  FJ  to  be  measured;  also  to 
measure  AC,  the  shore  line  of  plaintiff,  and  CH,  the  shore  line 
of  defendant.  Then  give  to  each  party  a  proportional  number 
of  feet  on  the  line  of  navigation,  measured  from  F  toward  J. 
Thus  giving  to  each  proportional  distance  based  on  the  num- 
ber of  feet  of  shore  owned  by  him.  Fig.  82. 

§  310.  Accretion — Revulsion — Reliction. — It  is  essential 
that  the  professions  be  able  to  determine  whether  the  changed 
condition  of  a  stream  or  water  front  results  in  accretion,  relic- 
tion, or  revulsion.  To  determine  this  question  it  is  necessary 
to  resort  to  extrinsic  evidence.  The  history  of  the  change 
must  be  known.  It  has  been  said,  as  applied  to  accretion, 
"Gradual  and  imperceptible  change"  means,  "though  the  wit- 


3^9 


RIPARIAN  RIGHTS 


§   310 


§310  SURVEYING  AND  BOUNDARIES  330 

nesses  may  see  from  time  to  time  that  progress  has  been 
made,  they  could  not  perceive  it  while  the  progress  was  going 
on/'50  Avulsion  or  revulsion  must  be  sudden  and  perceptible.51 
These  different  terms  apply  to  streams,  navigable  and  non- 
navigable  alike  and,  in  the  absence  of  treaty  regulations,  apply 
as  between  boundaries  between  different  states  and  nations.52 
And  it  has  been  held  that  where  an  island  was  formed  in  a 
river,  the  water  running  on  both  sides  of  it  and  which  there- 
after receded  from  that  part  of  the  bed  of  the  river  lying  be- 
tween the  island  and  the  main  shore,  such  recession  did  not 
change  the  title  to  the  soil  in  the  island  as  it  was  not  of  gradual 
and  imperceptible  change.53  Practically  the  change  was  sud- 
den and  resulted  in  avulsion.  Some  confusion  among  the 
authorities  is  apparent  by  reason  of  the  failure  of  the  courts 
to  distinguish  between  avulsion  and  accretion.  In  a  case 
where  plaintiff  and  defendant  were  riparian  owners  on  oppo- 
site banks  of  a  river,  and  situated  in  the  river  were  three  small 
islands  so  that  the  waters  in  the  river  divided  as  they  flowed 
along  past  the  islands,  it  was  held  that  the  islands  should  be 
divided  between  the  two  riparian  owners.54  But  where  a  part 
of  a  fractional  section  bordering  on  a  river  was  wholly  washed 
away  by  the  current  and  thereafter  accretion  formed  to  an 
island  in  the  river  opposite  the  fractional  section  and  gradually 
toward  and  extended  within  the  borders  of  the  fractional  sec- 
tion, but  did  not  connect  with  the  shore  line,  it  was  held  that 
the  owner  of  the  fractional  section  had  no  title  to  any  part  of 
the  island  so  formed.55 

50St.  Clair  v.  Lovingston,  23  Wall.  52Denny  v.   Cotton,  3  Tex.   Civ. 

(U.     S.)     46;     Jeffris     v.     East  App.  634,  22  S.  W.  122. 

Omaha  Land  Co.,   134  U.  S.   187,  "Victoria  v.  Schott,  9  Tex.  Civ. 

33  L.  ed.  872,  10  Sup.  Ct.  518;  Ne-  App.  332,  29  S.  W.  681. 

braska  v.  Iowa,  143  U.  S.  359,  36  64Strange    v.    Spalding,    17    Ky. 

L.  ed.  186,  12  Sup.  Ct  396.  L.  305,  29  S.  W.  137. 

51Bouvier's     Dictionary,     "Avul-  55Cox   v.   Arnold,    129   Mo.   337, 

sion."  31  S.  W.  592,  50  Am.  St.  45°. 


331  RIPARIAN   RIGHTS  §    311 

§  311.     Rights  on  navigable  and  nonnavigable  waters. — 

Shore  owners  on  meandered  lakes,  navigable  or  nonnavigable, 
take  only  to  the  water's  edge  in  Illinois.  In  the  event  the 
lake  dries  up  they  follow  the  water,  or  if  there  is  an  accretion 
to  the  shore  such  owner  owns  the  accretion.  In  order  that 
the  owner  may  continue  to  the  water's  edge  the  growth  or  the 
recession  must  be  of  slow  and  imperceptible  means.  Further- 
more the  accretion  must  have  attached  to  the  shore  of  the 
owners,  otherwise  it  would  either  belong  to  the  state  or  the 
private  owner  of  the  shore.56  In  Connecticut  the  owner  of 
land  bordering  on  a  river,  if  nonnavigable,  owns  to  the  middle 
of  the  bed,  and,  if  navigable,  to  high-water  mark.  The  line 
of  boundary  changes  where  the  change  is  slow  and  imper- 
ceptible. And  the  boundary  lines  between  riparian  owners, 
in  case  of  nonnavigable  streams  run  to  the  center  line  of  the 
stream  and  at  right  angle  to  such  center  line.  In  case  of 
navigable  streams  the  boundary  runs  only  to  low-water  mark 
but  at  right  angles  to  the  center  of  the  stream.57  It  is  the 
rule  that  land  separated  from  the  body  of  water,  even  by  the 
smallest  strip  of  land,  does  not  carry  riparian  rights  and  it  has 
been  held  in  Iowa  and  several  other  jurisdictions  that  accre- 
tion separated  from  the  owner's  land  by  a  highway  will  not 
belong  to  the  owner  of  land  on  the  opposite  side  of  the  high- 
way but  will  be  the  property  of  the  public.58  In  fact,  any  sep- 
aration of  claimant's  land  from  the  accretion  by  the  land  of 
another  precludes  his  right  to  the  accretion.  And  it  is  said 
that  where  the  boundary  of  a  tract  of  land  is  by  metes  and 
bounds  and  not  along  a  river  which  was  near  by,  the  tract  is 
not  riparian,  and  the  owner  does  not  go  to  the  stream  unless 

56Hammond  v.  Shepard,  186  111.  94,  6  Am.  St.  649 ;  St.  Louis  v.  Mis- 

235,  57  N.  E.  867,  78  Am.  St.  274.  souri  Pac.  Ry.  Co.,  114  Mo.  13,  21 

57Welles  v.  Bailey,  55  Conn.  292,  S.  W.  202;  Sweringen  v.  St.  Louis, 

10  Atl.  565,  3  Am.  St.  48.  151  Mo.  348,  52  S.  W.  346. 

B8Cook   v.    Burlington,   30    Iowa 


§    312  SURVEYING   AND   BOUNDARIES  332 

the  monuments  originally  placed  the  boundary  there.'"9  If  the 
change  is  brought  about  by  a  sudden  process  known  as  avul- 
sion the  boundaries  of  the  riparian  owner  do  not  change,  ex- 
cept where  a  part  of  his  land  be  carried  away  and  he  be  unable 
to  identify  it  in  its  new  location,  and  it  has  been  held  that 
where  a  lake  is  drained  in  one  year  by  a  ditch  and  the  cutting 
in  of  a  river,  an  owner  of  land  on  the  shore  line  acquires  no 
title  to  the  lake  bed,  by  accretion  or  reliction.60  It  will  be 
noted  that  where  there  is  a  sudden  change  it  is  neither  accre- 
tion or  reliction.  It  seems  to  us  that  the  Noyes  case  is  of 
doubtful  authority  when  applied  to  a  lake.  In  Wisconsin  the 
owner  of  land  on  a  meandered  lake  takes  no  fee  to  the  bed  of 
the  lake  but  is  entitled  to  any  accretion  to  his  shore  by  im- 
perceptible process,  and  to  that  part  of  the  bed  of  the  lake 
left  dry  by  recession.61 

It  is  sometimes  difficult  to  decide  whether  or  not  the  owner 
of  land  has  riparian  rights  under  a  certain  description.  In  a 
New  York  case  the  description  was :  "Commence  at  a  stake 
near  the  high-water  mark  of  the  pond/'  running  thence  "along 
the  high-water  mark  of  said  pond  to  the  upper  end  of  said 
pond."  It  was  held  that  the  line  thus  given  as  a  boundary  was 
a  fixed  and  permanent  monument  and  did  not  carry  the  accre- 
tion.62 

§  312.  Riparian  rights — Release  and  extent  of. — The  courts 
are  often  called  upon  to  determine  whether  or  not  a  given 
deed  carries  riparian  rights.  The  general  rule  is  that  if  the 
wording  of  the  description  carries  the  land  to  the  water's  edge 
it  entitles  the  grantee  to  riparian  rights,  unless  there  is  a 
reservation  of  such  rights.  In  the  case  of  St.  Louis  v.  Rutz,68 

59Sweringen  v.  St.  Louis,  151  Mo.  61Boorman  v.  Sunnuchs,  42  Wis. 
348,  52  S.  W.  346.  233. 

«°Noyes  v.  Collins,  92  Iowa  566,         62Cook    v.    McClure,    58    N.    Y. 
61  N.  W.  250,  26  L.  R.  A.  609,  54      437,  17  Am.  Rep.  270. 
Am.  St.  571.  63St.   Louis   v.   Rutz,    138   U.    S. 

226,  34  L.  ed.  941,  ii  Sup.  Ct.  337. 


333  RIPARIAN   RIGHTS  §    313 

these  words  followed  a  description  of  land  in  a  deed  of 
premises  in  Illinois,  bordering  on  the  Mississippi  river; 
"Together  with  all  rights  as  riparian  owner  to  the  accretion 
or  sand  bar  lying  northwesterly  and  between  the  extended  lines 
of  said  land  herein  described,  situated  in  the  county  of  St. 
Claire,  and  state  of  Illinois."  It  was  held  that  the  grantor 
conveyed  all  of  his  riparian  rights  appurtenant  to  survey  of 
the  land  conveyed  and  did  not  retain  to  himself  any  interest 
in  the  fee  of  the  bed  of  the  river.  In  this  case  the  title  to  a 
portion  of  an  island  in  the  Mississippi  river  opposite  the 
land  described,  extended  lengthwise  of  the  river  and  beyond 
the  end  lines  of  the  land  so  described.  The  party  owning  the 
shore  land  described  above  made  claims  to  portions  of  the 
island  above  and  below  the  end  lines  of  his  shore  land,  and 
it  was  held  that  the  right  of  accretion  to  an  island  in  a  river 
can  not  be  so  extended  lengthwise  of  the  river  as  to  exclude 
riparian  proprietors  above  or  below  such  island  from  access  to 
the  river,  as  such  riparian  proprietors. 

It  is  the  rule  that  when  a  survey  is  referred  to  in  a  descrip- 
tion of  land  in  a  deed  the  grantor  is  bound  by  it  and  land 
granted  as  bounded  by  a  river  extends  to  the  thread  of  the 
stream  in  those  states  where  the  riparian  proprietor  is  held  to 
own  the  bed  of  the  stream.  This  is  the  case  in  Illinois  and 
several  other  states,  among  them  Massachusetts.84  And  a 
grant  of  land  on  a  nonnavigable  river  carries  title  to  an  unsur- 
veyed  island  on  that  part  of  the  thread  of  the  stream.65 

§  313.  What  is  a  navigable  river ? — The  courts  have  fre- 
quent occasion  to  define  a  navigable  stream.  The  common- 
law  rule  that  those  streams  only  are  navigable  in  which  the 
tide  ebbs  and  flows  is  not  generally  recognized  in  this  country. 

64Lunt  v.  Holland,  14  Mass.  149;  65McBride  v.  Whittaker,  65  Nebr. 

Hardin  v.  Jordan,   140  U.   S.  380,  137,  90  N.  W.  966  (affirmed  in  197 

35    L.    ed.   428,    ii    Sup.    Ct.   808;  U.  S.  510,  49  L.  ed.  857,  25  Sup. 

Trustees  v.  Schroll,  120  111.  509,  12  Ct.  53°). 

N.  E.  243. 


§    3T4  SURVEYING  AND  BOUNDARIES  334 

The  United  States  Supreme  Court  has  defined  the  term 
"navigable  stream"  in  a  most  satisfactory  way  and  its  rule  has 
been  followed  largely  in  this  country.  That  rule  is  that  "a 
river  is  a  navigable  water  of  the  United  States  when  it  forms 
by  itself  or  its  connections  with  other  waters,  a  continuous 
highway  over  which  commerce  is  or  may  be  carried  on  with 
other  states  or  foreign  countries  in  customary  modes."66 
This  has  become  the  leading  case  in  this  country  on  the  defini- 
tion of  a  navigable  river.  The  court  in  that  case  also  says; 
"If  such  river  is  only  navigable  between  points  in  the  same 
state  and  does  not  connect  with  a  stream  or  lake  bearing  com- 
merce between  different  states,  it  is  not  a  navigable  river  of 
the  United  States  but  of  the  state  where  located."  And  if  a 
stream  be  capable  in  its  natural  state  of  use  for  commerce,  no 
matter  how  conducted,  it  is  navigable  in  fact,  and  becomes  a 
public  highway.67  And  a  stream  though  not  deep  enough  to 
permit  the  passage  of  boats  over  every  part  of  it  may  be 
navigable.68 

§  314.  Riparian  rights  a  valuable  appurtenant. — The  law 
has  always  regarded  riparian  rights  as  extremely  valuable  and 
will  carefully  guard  those  rights  and  divide  any  accretion 
adjacent  thereto  between  the  several  riparian  proprietors  so  as 
to  equitably  give  to  each  his  just  portion  thereof.  And  it  is 
said:  "When  land  is  bounded  by  a  lake  or  pond,  the  water, 
equally  as  in  the  case  of  a  river,  is  a  concrete  object,  a  unit; 
and  when  named  as  a  boundary  the  natural  inference  is  that 
the  middle  line  of  it  is  intended, — that  is  the  line  equidistant 

e«The  Montello,  11  Wall.  (U.  S.)  23  Wash.  354,  63  Pac.  239,  54  L.  R. 

411.  A.  178;  Falls  Mfg.  Co.  v.  Oconto 

67United   States  v.   Montello,  20  R.  I.  Co.,  87  Wis.  149,  58  N.  W. 

Wall.   (U.  S.)  430,  22  L.  ed.  39U  257;  Willow  River  Club  v.  Wade, 

United  States  v.  Rio  Grande,  D.  &  100  Wis.  99,  76"  N.  W.  273,  42  L. 

I.  Co.,  174  U.  S.  690,  43  L.  ed.  1136,  R.  A.  305. 

19     Sup.     Ct.     770;     Baldwin     v.  68St.  Anthony  Falls  W.  P.  Co., 

Erie  Shooting  Club,  127  Mich.  662,  v.  St.  Paul  Water  Corns.,  168  U.  S. 

87  N.  W.  59;  Griffith  v.  Holman,  349,  42  L.  ed.  497,  18  Sup.  Ct.  157, 


335     %  RIPARIAN   RIGHTS  §    3X5 

from  the  land  on  either  side."69    The  court  in  the  latter  case 
cites  a  number  of  decisions.70 

§  315.  Riparian  owners. — It  will  be  seen  that  the  rights  of 
riparian  owners  depend  largely,  for  their  limits,  on  the  law  of 
the  particular  jurisdiction  in  which  said  rights  arise.  For 
instance  some  states,  like  Wisconsin,  hold  that  those  rights 
extend  to  the  center  line  or  "thread  of  the  stream,"  in  all 
streams  navigable  or  unnavigable.  Other  states,  like  Missouri, 
hold  that  the  owner  takes  the  land  on  navigable  streams  only 
to  high-water  mark.  Hence,  the  rights  of  riparian  owners 
are  always  defined  by  the  laws  and  decisions  of  the  particular 
jurisdiction.  The  courts  of  Arkansas  hold  that  the  owner  of 
land  on  a  navigable  stream  takes  only  to  high-water  mark.71 
And  the  courts  of  Connecticut  lay  down  the  rule  that  riparian 
owners  take  to  high-water  mark  on  navigable  streams  and  to 
the  middle  of  nonnavigable  streams.72  In  the  State  of  Illinois 
riparian  owners  are  entitled  to  all  accretion.73  The  Missouri 
court  holds  that  an  accretion  to  an  island  in  the  Mississippi 
river  belongs  to  the  owner  of  the  island  and  not  to  the  owner 
of  the  shore  opposite.74  It  is  held  in  New  York  that  where 
land  is  diverted  by  artificial  means  and  not  imperceptibly, 
from  the  land  of  the  proprietor  bounded  by  low-water  mark, 

69Olson  v.  Huntamer,  6  S.  Dak.  Am.  Rep.  270;  Gouverneur  v.  Ice 

364,  61  N.  W.  479.  Co.,  134  N.  Y.  355,  31  N.  E.  865, 

70Mitchell   v.   Smale,    140  U.    S.  18  L.  R.  A.  695,  30  Am.  St  669. 

406,  35  L.  ed.  442,  ii  Sup.  Ct.  840;  71St.  Louis  I.  M.  Ry.  v.  Ramsey, 

St.  Paul  &  Pacific  Ry.  Co.  v.  Schur-  53  Ark.  314,  13  S.  W.  931,  8  L.  R. 

meier,  7  Wall.   (U.  S.)  272,  19  L.  A.  559,  22  Am.  St.  195. 

ed.   74;    Warren   v.    Chambers,   25  72Welles  v.  Bailey,  55  Conn.  292, 

Ark.  120,  91  Am.  Dec.  538,  4  Am.  10  Atl.  565,  3  Am.  St.  48. 

Rep.   23;    Fuller   v.    Dauphin,    124  73Lovingston  v.  St.  Clair,  64  111. 

111.  542,  16  N.  E.  917,  7  Am.  St.  56,  16  Am.  Rep.  516. 

388;   Ridgway  v.  Ludlow,  58  Ind.  74Tatum   v.    St.   Louis,   125   Mo. 

248;  Lamprey  v.  Metcalf,  52  Minn.  647,  28  S.  W.  1002. 
181,   53    N.   W.    1139;   Ledyard   v. 
Ten  Eych,  36  Barb.   (N.  Y.)    102; 
Cook  v.  McClure,  58  N.  Y.  437,  17 


§    316  SURVEYING  AND  BOUNDARIES  336 

he  acquires  no  title  to  the  derelict  bed  of  the  stream.75  The 
term  high-water  mark  has  been  the  subject  of  many  decisions 
of  the  courts.  When  a  court  has  decided  that  a  proprietor 
takes  to  high-water  mark,  where  is  the  boundary  line?  Evi- 
dently it  is  not  the  line  of  the  very  highest  point  to  which  the 
water  has  reached  in  times  of  great  freshets  for  this  would 
frequently  take  a  large  part  of  the  farms  of  many  owners. 
High-water  mark  is  said  to  be  found  by  ascertaining  where 
the  presence  and  action  of  water  are  so  usual  and  long  con- 
tinued in  ordinary  years  as  to  mark  upon  the  soil  of  the  bed 
of  the  stream  or  body  of  water  a  character  distinct  from  that 
of  the  bank  in  respect  to  vegetation  and  the  nature  of  the 
soil.76  So  if  the  bank  or  bed  rather  is  wrested  of  vegetation 
it  is  evident  that  such  part  is  below  high-water  mark. 

§  316.  Boundaries  between  owners  of  accretion. — We  have 
dealt  quite  at  length  on  the  matter  of  the  division  of  accre- 
tion between  riparian  owners  in  other  parts  of  this  chapter. 
Some  of  the  cases  called  for  peculiar  and  complicated  rules 
for  the  division  thereof.  The  peculiar  and  novel  partitions,  of 
course,  were  intended  to  do  justice  between  the  several  owners 
of  shore  line  under  the  peculiar  circumstances.  The  question 
to  be  solved  in  each  case  was  an  equitable  division  of  the  ac- 
cretion or  of  the  old  and  new  shore  line  between  the  several 
owners.  While  general  rules  have  been  laid  down  by  the 
courts,  as  we  have  seen,  which  will  be  followed  insofar  as 
possible,  yet  each  case  must  be  solved  largely  on  its  merits. 
The  rules  to  be  applied  in  view  of  the  circumstances.  The 
Supreme  Court  of  Connecticut  has  laid  down  the  rule  that 
accretion  formed  on  the  shore  of  a  stream  should  be  divided 
between  the  riparian  owners  by  drawing  direct  lines  from 

7f'Halsey  v.  McCormick,  18  N.  V.  Houghton  v.   Chicago  &c.   R.   Co., 

147.  47  Iowa  370;  Howard  v.  Ingersoll, 

78St.   Louis    I.   M.   &   S.   Ry.   v.  13   How.    (U.   S.)    381,   14   L.   ed. 

Ramsey,  53  Ark.  314,  13  S.  W.  931,  189. 
8  L.  R.  A.  559,  22  Am.   St.   195; 


337 


RIPARIAN    RIGHTS 


§ 


the  points  of  the  intersections  of  the  boundary  lines  with  the 
old  shore  line  to  the  center  or  thread  of  the  stream  and  at 
right  angles  thereto.77  And  the  courts  of  Kentucky  say: 
"Riparian  owners  of  land  fronting  on  the  Ohio  river  are 
entitled  to  the  land  added  thereto  by  accretion,  to  be  ascer- 
tained by  extending  the  original  river  frontage  of  the  respec- 
tive lots  as  nearly  as  practicable  at  right  angles  with  the  course 
of  the  river  to  the  thread  of  the  stream."78  In  the  diagram 


Shore    1830                 ~~* 
Shore   1867 

\ 
\ 

P" 

\ 
\ 

\ 
*     ^ 

\ 

J 

Ohio     River 
Rq.83 


Fig.  83,  the  dotted  lines  represent  the  boundaries  as  claimed 
by  the  owner  of  lot  24.  The  court  held  the  proper  boundary 
to  be  as  represented  by  the  lines  AB  and  CD.  See  also  Fig.  65. 

"Welles  v.  Bailey,  55  Conn.  292,          78Miller    v.    Hepburn,    8    Bush. 
10  Atl.  565,  3  Am.  St.  48.  (Ky.)  326. 


§    31?  SURVEYING   AND   BOUNDARIES  338 

§  317.  Island  and  main  shore.— Where  the  place  occupied 
by  an  island  in  a  lake  was  marked  upon  the  plat  of  the  gov- 
ernment survey  of  1851,  as  "Bayou,"  but  the  island  was 
shown  to  have  existed  before  the  government  survey,  and  had 
since,  by  accretion,  become  joined  to  the  main  land,  held 
that  the  owner  of  the  land  to  which  said  island  had  become 
joined  was  not  entitled  to  said  island  as  an  accretion  to  his 
land.  In  such  case  the  alluvial  deposits  should  be  equally 
divided  between  the  respective  owners  of  the  island  and  of 
the  portion  of  the  main  land  to  which  it  had  become  joined.79 
See  Fig.  72.80  Where  one  of  two  adjoining  owners  of  a  cove 
fills  in  the  cove  in  front  of  his  land  and  of  the  adjoining  owner 
the  general  rule  applies  as  for  the  division  of  accretion,  and 
where  the  general  course  of  the  shore  is  a  straight  line,  division 
is  made  by  a  line  drawn  from  a  point  on  the  shore  line  inter- 
sected by  the  boundary  line  to  the  general  course  of  the  middle 
of  the  stream  and  perpendicular  thereto.81  But  where  the 
shore  line  curves  the  division  lines  will  either  converge  or 
diverge  depending  whether  such  line  be  convex  or  concave. 
In  any  event  the  old  and  new  shore  lines  should  be  measured 
and  each  owner  given  a  proportionate  part  of  the  new  shore 
line  as  compared  with  the  old  shore  line.82  In  connection  see 
Fig.  53 ;  also  read  the  text  referring  thereto.83  In  Michigan  a 
grant  of  land  bounded  by  a  stream,  whether  navigable  in  fact 
or  not,  carries  with  it  the  bed  of  the  stream  to  the  center  of 
the  thread  thereof.84  In  the  Butler  case  cited  above,  in  the 

79Bigelow    v.    Hoover,    85    Iowa  84Grand  Rapids  &  I.  Ry.  v.  But- 

161,  52  N.  W.  124,  39  Am.  St.  296.  ler,  159  U.  S.  87,  40  L.  ed.  85,  15 

80Benson  v.  Morrow,  61  Mo.  345.  Sup.    Ct.   991,    16   Am.    Rep.    242; 

81  Watson    v.    Home,   64    N.    H.  Turner  v.   Holland,  65   Mich.  453, 

416,  13  Ad.  789.  33    N.    W.    283;    Grand    Rapids   v. 

82Watson  v.  Home,  64  N.  H.  416,  Powers,  89  Mich.  94,  So  N.  W.  661 ; 

13  Ad.  789.  Janesville    v.    Carpenter,    77    Wis. 

"Northern    Pine    Land    Co.    v.  288,  46  N.  W.  128. 
Bigelow,  84  Wis.  157,  54  N.  W.  496; 
ante  §  254. 


339  RIPARIAN   RIGHTS 

original  government  survey  four  islands  only  were  surveyed 
and  meandered  in  Grand  River;  patents  were  issued  to  the 
grantors  of  Butler  to  the  shore  property  immediately  there- 
after and  with  reference  to  the  original  survey.  Twenty-five 
years  thereafter,  on  application,  the  government  surveyed 
another  small  island  in  the  river  opposite  the  lands  of  But- 
ler, and  which  he  claimed  as  a  part  of  his  riparian  rights,  and 
a  patent  was  issued  to  the  plaintiff  railway  company.  It  was 
not  claimed  there  was  any  fraud  or  mistake  in  the  original 
survey.  The  court  properly  held  that  island  No.  5  belonged  to 
Butler  as  a  riparian  owner  of  the  shore  opposite.  Had  there 
been  any  fraud  or  mistake  in  the  original  survey  by  which 
island  No.  5  was  omitted  from  the  survey  it  would  vitiate 
the  same  and  the  government  could,  on  discovery  of  such 
fraud  or  mistake,  order  a  new  survey.  This  is  clearly  the 
rule  sustained  by  eminent  authority.85  And  the  Massachusetts 
court  holds  that  the  proprietors  of  the  bank  of  a  river,  not 
navigable,  own  respectively  the  soil  to  the  middle  of  the  river, 
subject  to  the  rights  of  the  public  to  pass  over  the  stream.86 
And  that  court  holds  that  an  island  in  a  river,  not  navigable, 
(not  otherwise  appropriated  according  to  the  rules  of  law)  if 
altogether  on  one  side  of  the  dividing  line,  or  filum  acque, 
belongs  to  the  owner  of  the  bank  on  that  side;  if  in  the  middle 
of  the  river,  it  belongs  in  severalty  to  the  owners  of  the  banks 
on  each  side ;  and  the  dividing  line  will  run  in  the  same  manner 
as  if  there  were  no  island  in  the  river.87  And  the  court  in  the 
latter  case  says  at  page  270 :  "The  common  law  recognizes  an 
important  distinction,  as  to  the  use  of  waters  and  the  property 
of  the  soil,  between  rivers  or  waters  navigable,  and  those  which 
are  not  navigable.  The  former  invariably  and  exclusively  be- 

85Security    Land    &    Exploration  86Ingraham  v.  Wilkinson,  4  Pick. 

Co.  v.  Burns,  87  Minn.  97,  91  N.  W.  (Mass.)  268,  16  Am.  Dec.  342. 

304;  Grand  Rapids  &  I.  Ry.  Co.  v.  87Ingraham  v.  Wilkinson,  4  Pick. 

Butler,  159  U.  S.  87,  40  L.  ed.  85,  (Mass.)  268,  16  Am.  Dec.  342. 
15  Sup.  Ct.  991,  16  Am.  Rep.  242. 


SURVEYING  AND  BOUNDARIES  340 

longs  to  the  public,  unless  acquired  from  it  by  individuals 
under  grant  or  prescription.  The  latter  are  held  to  belong  to 
those  whose  land  borders  on  the  waters."  Other  cases  are 
to  the  same  effect.88 

§  318.  Course  of  stream  changing. — Many  nice  questions 
have  arisen  in  controversies  over  lands  left  as  a  result  of  a 
stream  changing  its  course.  In  some  states  there  is  a  differ- 
ence in  the  decisions  as  applied  to  navigable  and  nonnavigable 
streams,  while,  in  others,  the  rules  are  the  same.  It  has  been 
held  in  Massachusetts  that  if  the  course  of  a  stream,  not  nav- 
igable, changes  and  cuts  off  a  point  of  land  on  one  side,  mak- 
ing an  island,  such  island  belongs  to  the  original  owner.89  In 
such  case,  if  the  old  bed  of  the  river,  being  gradually  deserted 
by  the  current,  fills  up  and  new  land  is  formed,  such  newly 
formed  land  belongs  to  the  opposite  riparian  proprietors  re- 
spectively to  the  thread  of  the  old  river.90  And  if  a  new 
island  be  formed  in  the  river,  above  said  island  to  which  refer- 
ence is  made  in  the  Hopkins  Academy  case,  and  independent 
of  said  island  and  not  by  a  slow,  gradual  and  insensible  accre- 
tion to  it,  such  new  land  above  belongs  to  the  opposite  ripa- 
rian proprietors  respectively  to  the  filum  acque,  or  thread  of 
the  stream.91 

§  319.  How  to  find  center  of  thread  of  stream. — The  cases 
speak  of  the  "thread  of  the  stream"  and  the  "center  of  the 
stream"  in  discussing  the  rights  of  riparian  owners  to  accre- 
tion or  to  the  beds  of  streams.  The  courts  do  not  all  agree 
on  what  is  the  thread  or  center  of  the  stream,  or  how  to  find 
the  center  of  thread  of  the  stream.  Some  courts  hold  that  the 
thread  of  the  stream  is  the  geographical  center;  others  that 
the  center  of  thread  of  the  stream  is  the  center  of  the  main 

88Deerfield  v.  Arms,  17  Pick.  e°Hopkins  Academy  v.  Dickin- 

(Mass.)  41,  28  Am.  Dec.  276.  son,  9  Cush.  (Mass.)  544. 

89Hopkins  Academy  v.  Dickin-  91Hopkins  Academy  v.  Dickin- 
son, 9  Cush.  (Mass.)  544.  son,  9  Cush.  (Mass.)  544. 


341  RIPARIAN   RIGHTS  §    320 

channel  of  the  river  as  it  flows  naturally.92  It  is  eyident  that 
the  two  would  not  coincide  in  one  time  in  twenty,  and  it  is  also 
evident  that  whichever  method  be  adopted  of  ascertaining  the 
center,  there  would  be  a  change  from  time  to  time  in*  the  loca- 
tion of  that  center  as  the  main  current  or  as  the  banks  changed. 
The  Massachusetts  court  has  laid  down  the  following  rule  for 
determining  the  thread  of  the  stream  :93  "In  ascertaining  the 
thread  of  the  river,  it  will  be  proper  to  take  the  middle  line 
between  the  shores  upon  each  side,  without  regard  to  the 
channel,  or  lowest  and  deepest  part  of  the  stream.  And  in  as- 
certaining the  shore,  or  water  line  on  each  side,  to  measure 
it,  it  will  be  proper  to  find  where  those  lines  are-  when  the 
water  is  in  its  natural  or  ordinary  stage,  at  a  medium  height, 
neither  swollen  by  freshets  or  shrunk  by  draught."  However 
the  author  would  suggest  that,  upon  a  careful  reading,  of  the 
authorities,  he  is  firmly  convinced  that  the  great  weight  of 
authority  is  to  the  effect  that  the  "thread  of  the  stream" 
means  the  "center  of  the  main  channel"  thereof.94  And  why 
should  this  not  be  the  thread  of  the  stream?'  That  point  can 
always  be  ascertained.  It  does  not  take  into  consideration 
bayous  or  offshoots  or  similar  conditions. 

§  320.  Right  to  accretions  depends  on  conditions  at  date 
of  grant. — What  rights  has  a  riparian  owner  ?  Where  was  the 
original  bank  of  the  stream  ?  In  parting  off  land  adjacent  to  a 
stream  to  what  point  must  the  computation  of  area  be  made? 
If  a  description  be  made  in  an  early  day,  and  later  by  many 
years,  a  survey  be  made  after  the  banks  have  washed  away, 
and  it  is  necessary  to  part  off  a  certain  area,  to  what  point 
should  the  measurements  be  made  ?*  These  and  kindred  ques- 
tions are  frequently  arising  and  the  surveyor  should  know 
what  the  courts  have  held  with  reference  thereto.  The  United 

92Franzini  v.  Layland,  120  Wis.  94Franzini  v.  Layland,  120  Wis. 
72,  97  N.  W.  499.  72,  97  N.  W.  499. 

93Hopkins    Academy    v.    Dickin- 
son, 9  Cush.  (Mass.)  544,  552. 


§    321  SURVEYING  AND  BOUNDARIES  342 

States  Supreme  Court  has  held  that  the  right  which  the  owner 
of  a  water  lot  has  to  the  accretion  in  front  of  it,  depends  on  its 
condition  at  the  date  of  the  deed  which  conveyed  him  the  legal 
title.95  We  think  this  is  the  general  rule,  as  the  parties  must 
have  contracted  with  reference  to  conditions  as  they  then 
existed.  And  it  has  been  held  that  where  the  land  is  patented 
to  a  riparian  owner  by  the  United  States  and  a  part  of  the 
land  is  thereafter  washed  away,  but  is  afterwards  restored  by 
accretion  so  as  to  include  the  lines  described  in  the  original 
patent  the  owner  acquires  title  to  the  limits,  at  least,  of  the 
original  lines.96  In  this  case  a  considerable  part  of  the  riparian 
owner's  land  had  washed  away  and  was  subsequently  restored 
so  as  to  replace  the  entire  tract  lost,  excepting  as  to  a  slough 
which  was  left  running  across  the  tract,  and  within  the  limits 
of  the  original  lines. 

§  321.     Revulsion  of  river — Boundary  remains  unchanged. 

— Where  a  river  changes  its  course  by  revulsion  or  suddenly 
and  perceptibly  it  is  the  rule  that  the  boundary  does  not  change 
but  remains  as  it  was  before  such  change.  And  it  is  laid  down 
by  the  Missouri  court  that  where  by  revulsion  a  river  entirely 
forsakes  its  channel  and  forms  a  new  one  the  boundary  line  of 
the  adjacent  land  remains  unchanged.  Furthermore  it  is  said 
that  the  owner  of  the  bank  on  the  Missouri  river  is  not  the 
owner  of  an  island  which  springs  up  in  the  middle  of  the  river, 
whether  the  island  be  on  the  one  or  the  other  side  of  the  thread 
of  the  stream.97  This  is  on  the  theory  that  on  navigable 
streams,  according  to  the  American  doctrine,  the  beds  belong 
to  the  state  and  the  riparian  owners  do  not  take  to  the  thread 
of  the  stream.  And  that  court  holds  that  in  a  grant  of  land 
from  the  government  the  grantee  took  only  to  the  water's  edge 
and  not  to  the  middle  of  the  stream.98  And  the  court  in  that 

95Johnston  v.  Jones,  i  Black  (U.  97Cooley  v.  Golden,  117  Mo.  33,  23 

S.)  209,  17  L.  ed.  117.  S.  W.  100. 

96Minton  v.  Steele,  125  Mo.  181,  98Cooley  v.  Golden,  117  Mo.  33, 

28  S.  W.  746.  23  S.  W.  100. 


343  RIPARIAN    RIGHTS  §    321 

case  further  holds  that,  where  in  such  case,  by  accretions  to  the 
island,  which  was  in  the  river  at  the  time  of  the  original  sur- 
vey, but  was  not  surveyed,  its  water  margin  unites  to  the  main 
shore,  the  newly  made  land  becomes  a  part  of  the  island  and 
not  of  the  main  land,  and  the  riparian  ownership  of  the  bank 
of  the  main  land  was  not  extended.  It  is  also  said  that  the 
fact  that  the  government,  by  its  rulings,  holds  that  it  conveys 
all  of  the  interest  to  the  soil  in  the  channel  where  it  conveys 
the  shore,  yet  the  extent  of  the  grant  depends  entirely  on  the 
state  law.  This  latter  principle  is  the  universal  rule,  unless 
the  government  has  made  reservations  in  its  grants  or  there 
has  been  fraud  committed  or  there  has  been  a  mistake  as 
herein  stated. 

To  the  end  that  the  case  of  Cooley  v.  Golden  cited  herein 
be  made  plain  we  furnish  two  diagrams  representing  the  situa- 
tion. See  Figs.  84  and  85.  Fig.  &j.  shows  the  Missouri  river 
as  it  was  at  the  time  of  the  original  survey  in  i8*|.6.  It  also 
shows  the  cut-off  made  in  1867,  at  a  time  when  the  river  was 
very  high  and  the  water  rushed  through  at  the  bend  and 
formed  a  new  channel  and  the  river  has  ever  since  flowed  in 
the  new  channel,  leaving  the  old  channel  dry  to  a  large  extent, 
the  entire  width,  a  mile  or  more,  and  several  miles  in  length. 
At  the  time  of  the  original  survey  there  was  an  island  in  the 
north  bend  of  the  river  designated  on  the  plan,  Fig.  84,  by  the 
letter  O,  though  this  island  was  never  surveyed.  After  the 
forming  of  the  new  channel  there  were  several  sloughs  left 
in  the  bed  of  the  old  stream  as  indicated  in  Fig.  85.  While  we 
designate  on  the  diagrams  the  lands  as  claimed  by  the  plaintiff, 
thus,  "Plaintiff,"  yet,  as  a  matter  of  fact  the  lands  were  the 
lands  of  plaintiff's  lessor.  Still  this  will  make  no  difference 
with  the  issues.  T*he  lands  of  plaintiff  are  designated  on  Fig. 
85,  and  were  patented  to*  plaintiffs  lessor  or  his  grantor  in 
about  the  year  1860.  That  interest  owned  the  shore  both 
north  and  south'  of  the  original  stream  as  it  flowed  before  the 


§  321 


SURVEYING  AND  BOUNDARIES 


344 


Nebraska 
5bate    Line 


Fiq.84 


cut-off.  Soon  after  the  change  of  channel  the  defendant's 
grantor  squatted  on  the  tract,  ABCDEA,  Fig.  85,  built  fences 
thereon,  and  farmed  it  for  many  years.  The  squatters  first 


345 


RIPARIAN   RIGHTS 


§    321 


F,q.85 


§    322  SURVEYING  AND  BOUNDARIES  346 

took  possession  of  Pole  Island  in  about  the  year  1861.  It  was 
deeded  several  times  and,  after  the  change  of  the  channel, 
their  possession  was  extended  southerly  to  the  point  B.  The 
defendant's  grantor  purchased  the  land  in  1868,  from  another 
squatter  and  he  and  his  grantors  continued  in  possession  up 
to  the  time  of  the  litigation.  The  plaintiff's  lessor  built  fences 
in  1886,  south  of  the  river  as  indicated  by  dotted  lines  and 
this  fence  was  extended  north  across  the  center  of  the  old 
channel  and  near  the  road.  The  plaintiff's  lessor  claimed  all 
of  the  bed  of  the  old  channel  left  dry  as  accretion  to  his  ripa- 
rian rights  on  both  sides  of  the  original  stream.  The  action 
was  for  the  recovery  of  about  two  hundred  and  seventy  acres 
of  unsurveyed  land  designated  on  Fig.  85  by  the  letters 
ABCDEA.  It  was  held  that  the  plaintiff's  lessor  had  no  rights 
in  any  part  of  the  old  bed  of  the  stream  and  judgment  was  for 
defendant.  Undoubtedly  the  ruling  would  be  different  in 
those  states  which  held  that  the  riparian  owner  on  a  navigable 
or  nonnavigable  stream  takes  to  the  center  of  the  stream  sub- 
ject to  the  rights  of  the  public  to  pass  over  the  stream.  Hence, 
it  is  quite  necessary  that  the  professions  be  familiar  with  the 
ruling  of  the  highest  court  of  the  particular  state  on  the 
rights  of  a  riparian  proprietor  to  the  end  that  a  correct  con- 
clusion be  arrived  at  in  a  given  case. 

§  322.  Division  of  long  irregular  lake  bed. — The  Supreme 
Court  of  Minnesota,  in  the  case  of  Rooney  v.  County  of 
Stearns,"  had  up  for  consideration  the  matter  of  the  division 
among  the  various  riparian  owners  of  the  dry  bed  of  a  long, 
irregular  lake.  While  the  case  was  one  concerning  drainage 
yet  the  main  question  before  the  court  was  one  concerning  the 
proper  method  of  apportioning  the  dry  bed  of  a  lake  which  had 
been  drained.  The  lower  court  made  a  division  by  ascertain- 
ing the  center  and  dividing  the  bed  by  the  so-called  "pie 

"Rooney  v.  Stearns  County,  130 
Minn.  176,  153  N.  W.  858. 


347  RIPARIAN   RIGHTS  §    323 

cutting"  method,  which  had  been  approved  in  an  earlier  case, 
in  the  division  of  a  substantially  round  lake.1  The  appellate 
court  reversed  the  lower  court  and  remanded  the  case  for  a 
new  trial.  At  page  180  the  court  says :  "We  also  observe 
that  the  lake  is  so  long  and  irregular  in  shore  line  that  a  dis- 
tribution of  the  bed  by  the  'pie  cutting'  method  will  result  in 
palpable  injustice."  And  the  court  suggests  that  the  method 
shown  in  Fig.  86  should  be  followed  in  a  division  of  the  bed. 
Referring  to  the  division  of  the  bed  of  a  stream  as  applied 
to  a  long  lake  the  court  at  page  180  says :  "We  do  not  think 
the  absence  of  an  actual  flowing  stream,  produced  by  an  inlet 
and  outlet,  render  improper  the  application  of  the  rule  that  this 
lake  bed  should  be  divided  like  the  bed  of  a  running  stream. 
It  is  clear  enough  from  former  decisions  involving  the  owner- 
ship of  lake  beds,  that  no  hard  or  fast  rule  can  be  applied.  Each 
case  must,  in  a  large  measure,  depend  on  the  shape  and  char- 
acter of  the  lake  and  the  shore  line."2  The  court  in  the  Rooney 
case3  quotes  from  Hardin  v.  Jordan  as  follows:  "Where  a 
lake  is  very  long  in  comparison  with  the  width,  the  method 
applied  to  rivers  and  streams  would  probably  be  the  most 
suitable  for  adjusting  riparian  rights  in  the  lake  bottom  along 
its  sides  and  the  use  of  converging  lines  would  only  be  required 
at  its  two  ends."  Nevertheless  we  believe  that  converging 
lines  would  be  necessary  in  the  division  of  the  bed  of  a  long 
lake. 

§  323.  Title  to  bed  and  shores  of  water  ways. — It  will  be 
seen  from  what  has  already  been  said  relative  to  this  interest- 
ing and  complex  matter  that  the  authorities  are  in  great  con- 

^cheifert   v.    Briegel,   90   Minn.  fert   v.    Briegel,   90  Minn.    125,   96 

125,  96  N.  W.  44,  63  L.  R.  A.  296,  N.  W.  44,  63  L.  R.  A.  296,  101  Am. 

101  Am.  St.  399,*  ante  §  301.  St.   399,    Burton    v.    Isaacson,    122 

2Lamprey  v.  State,  52  Minn.  181,  Minn.  483,  142  N.  W.  925. 
53   N.   W.   1139,    18   L.   R.   A.  670,          3Hardin  v.  Jordan,  140  U.  S.  371, 

38  Am.   St.   541 ;   Hanson  v.   Rice,  35  L.  ed.  428,  II   Sup.  Ct.  838. 
88  Minn.  273,  92  N.  W.  982 ;  Schei- 


§323 


SURVEYING  AND  BOUNDARIES 


348 


Rq.86. 


349  RIPARIAN    RIGHTS  §    323 

fusion.  As  we  have  seen  some  states  hold  that  the  state  owns 
the  beds  of  all  navigable  streams  ;4  others  hold  that  the  federal 
government  owns  those  beds,  but  this  is  so  probably  only  in 
case  of  a  reservation,  and  still  others  hold  that  the  riparian 
proprietor  owns  that  bed  subject  to  the  right  of  the  public  to 
pass  over  the  waters.5  Undoubtedly  this  great  difference  came 
about,  in  part,  by  reason  of  the  difference  in  the  definition  of 
a  navigable  stream  at  common  law  and  one  within  the  mean- 
ing of  the  decisions  of  the  courts  of  the  United  States.  Then, 
too,  the  old  idea  was  that  the  king  owned  all  of  the  lands  of 
his  domain  and  that  he  might  barter  them  away  as  he  saw  fit. 
This  doubtless  had  its  influence  in  determining  the  rights  of 
individuals,  the  rights  of  the  state,  and  the  rights  of  the  federal 
government  in  the  beds  of  lakes  and  streams.  In  the  old  days 
the  barons  secured  vast  grants  from  the  king.  Under  these 
grants  the  Baron  took  possession  of  the  shores  and  beds  of 
lakes  and  streams  and  claimed  to  be  the  owner  thereof.  The 
general  understanding  was  that  the  beds  of  streams  belonged 
to  the  riparian  owner  and  not  to  the  crown.6  Strenuous  efforts 
were  made  to  overturn  this  principle  and  to  get  an  adjudica- 
tion that  after  a  grant  from  the  crown,  of  lands  on  waters,  the 
crown  remained  the  owner  of  the  beds  and  shores  of  streams.7 
Out  of  the  agitation  grew  the  principle,  well  established,  that 
the  public  has  a  right  of  passage  and  repassage  over  the  waters, 
which  must  not  be  obstructed  by  nuisances,  such  as  wharves, 
docks,  or  booms.  Still  this  left  the  title  of  the  beds  of  those 
streams  in  the  riparian  owner  subject  to  the  public  rights  to 
pass  over  those  waters.8  Naturally  this  was  the  forerunner  of 
two  lines  of  decisions  in  this  country  as  to  the  rights  of  the 
riparian  owner  in  the  beds  of  navigable  streams  and  other 

4Musser  v.  Hershey,  42  Iowa  356.  7AttorneyGeneral  v.  Richards,  2 

5Norcross  v.  Griffiths,  65  Wis.  Anstr.  603,  3  Rev.  Rep.  632. 

599,  27  N.  W.  606,  56  Am.  Rep.  642.  8I  Farnham  Waters  and  Water 

6I  Farnham  Waters  and  Water  Rights  page  167, 

Rights,  page  168. 


§    324  SURVEYING   AND   BOUNDARIES  350 

waters.  Both  lines  of  decisions  are  based  on  the  common  law 
or  traced  to  the  common  law  for  their  basis.  We  feel,  there- 
fore, that  we  should  take  up  the  two  lines  of  authorities  from 
the  several  states  and  analyze  them.  Farnham  lays  down  the 
general  rule  as  follows:  "In  general  it  may  be  said  that  as 
between  the  riparian  owner  and  the  public  the  title  to  beds  of 
all  nonnavigable  streams  and  the  beds  of  small  lakes  is  in  the 
individual."9 

§  324.  Laws  of  state  determine  extent  of  riparian  proprie- 
tor's rights. — It  may  be  laid  down  as  the  universal  rule  that, 
unless  there  are  reservations  or  exceptions  in  the  grant  from 
the  government,  the  laws  of  the  state  determine  the  extent  of 
the  ownership  of  the  riparian  proprietor  on  navigable  streams. 
This  ownership  is  either:  i.  To  high-water  mark;  2.  To 
low- water  mark;  3.  To  center  of  stream.10 

The  rules  in  the  various  states  are  in  great  confusion  as  to 
the  extent  of  the  rights  of  the  riparian  owner  in  the  soil  of  the 
bed  of  navigable  streams.  In  some  states  it  is  held  that  the 
riparian  owner  takes  title  to  the  soil  in  the  bed  of  the  stream 
subject  to  the  right  of  the  public  to  pass  over  the  same.  In 
others  he  takes  to  high-water  mark  only,  and  in  still  others  to 
low-water  mark.  It  is  sometimes  said  that  "Lands  bounded 
by  a  stream  are  presumed  to  extend  to  the  center  of  the  stream 
unless  restricted  by  the  grant  or  a  contrary  intent  appears.11 
And  the  courts  of  Maine  have  held  that  the  owner  of  land 
adjoining  tide  water  prima  facie  owns  to  low- water  mark, 
unless  shown  to  the  contrary.12 

Alabama.    The  owner  of  land  on  a  navigable  stream,  above 

9I    Farnham    Water   and    Water  "Avery  v.   Fox,   Fed.   Cas.   No. 

Rights  §  36.  674,  i  Abb.  (U.  S.)  246. 

10Packer  v.  Bird,  137  U.  S.  661,  12Snow    v.    Mt.    Desert    I.    Real 

34  L.  ed.  819,  ii  Sup.  Ct.  210;  St.  Estate  Co.,  84  Maine  14,  24  Atl.  429, 

Louis  v.  Rutz,  138  U.  S.  226,  34  L.  17  L.  R.  A.  280,  30  Am.  St.  331. 
ed.  941,  ii  Sup.  Ct.  337. 


351      >  RIPARIAN   RIGHTS  §    324 

tide  water,  which  is  recognized  as  a  highway,  has  no  title  to 
the  soil  in  the  bed  thereof.13 

California.  The  right  of  the  state  to  lands  under  water, 
where  the  tide  ebbs  and  flows,  is  founded  upon  her  sovereign 
control  over  the  easement  or  right  of  navigation,  and  where 
the  easement  is  destroyed,  the  right  of  the  state  ceases,  except 
to  prosecute  for  purpresture,  and  have  the  easement  restored.14 
It  will  be  noted  that  the  last  case  referred  to  tide  waters  and 
hence  that  rule  would  not  apply  to  navigable  streams. 

Connecticut.  The  owners  of  land  upon  a  nonnavigable 
river  own  to  the  middle  of  the  bed  thereof,  and  if  the  stream 
be  navigable  they  own  to  high-water  mark.15  The  river  in  the 
above  cause  was  the  Connecticut  and  at  the  point  in  question, 
the  tide  ebbed  and  flowed.  Hence  it  is  clear  that  the  Connecti- 
cut court  at  that  time  regarded  rivers  as  navigable  only  where 
the  tide  so  ebbed  and  flowed.  The  court  says,  (316)  :  "If 
a  particular  tract  was  entirely  cut  off  from  a  river  by  an  inter- 
vening tract,  and  that  intervening  tract  should  be  gradually 
washed  away  until  the  remoter  tract  was  reached  by  the  river, 
the  latter  tract  would  become  riparian  as  much  as  if  it  had  been 
originally  such."16 

Florida.  A  grantee  of  the  upland  does  not  necessarily  take 
the  land  below  high-water  mark  it  is  said.17 

Illinois.  The  title  of  a  riparian  owner  bounded  by  a  nav- 
igable slough  of  the  Mississippi  river,  extends  to  the  middle 
of  the  slough  and  includes  unsurveyed  islands  separated  from 
the  main  land,  which  lie  between  the  main  land  and  the  center 
of  the  slough.18  The  owners  of  tracts  of  land  on  the  opposite 
sides  of  a  meandered  stream  own  the  soil  under  the  stream 

13Bullock  v.  Wilson.  2  Port.  16Peuker  v.  Canter,  62  Kans.  363, 

(Ala.)  436.  63  Pac.  617;  ante  §  249. 

14Guy  v.  Hermance,  5  Cal.  73,  17Axline  v.  Shaw,  35  Fla.  305, 

63  Am.  Dec.  85.  17  So.  411,  28  L.  R.  A.  391. 

15Welles  v.  Bailey,  55  Conn.  292,  18Fuller  v.  Dauphin,  124  111.  542, 

10  Atl.  565,  3  Am.  St.  48.  16  N.  E.  917,  7  Am.  St.  388. 


§    324  SURVEYING  AND  BOUNDARIES  352 

respectively  to  the  center,  subject  to  the  public  rights  of 
navigation.19 

Indiana.  The  title  to  the  soil  of  the  beds  of  nonnavigable 
streams  is  in  the  riparian  owner.20 

Iowa.  The  soil  in  the  beds  of  all  meandered  and  navigable 
streams  belongs  to  the  state  within  which  they  lie  and  the 
riparian  owners  take  to  high-water  mark.21 

The  soil  of  the  beds  of  nonnavigable  streams  belong  to 
owners  of  the  shores  thereof.22  In  the  state  of  Iowa,  the 
courts  hold  that  the  state  owns  the  beds  of  navigable  streams 
and  lakes  and  that  the  riparian  owner  takes  to  high-water 
mark  only,  and  this  holding  is  reflected  in  the  decisions  of  the 
United  States  Supreme  Court  in  cases  appealed  to  that  court 
from  Iowa  courts.23 

Kentucky.  The  boundary  of  the  state  of  Kentucky  on  the 
Ohio  river  extends  only  to  low-water  mark.24  But  a  riparian 
proprietor  owns  to  the  middle  of  the  stream.25 

Louisiana.  Property  bounded  by,  "in  front  by  the  Missis- 
sippi river,"  and  in  the  rear  by  a  named  street,  "together  with 
the  privileges  and  appurtenances  thereto  belonging  or  in  any- 
wise appertaining/*  is  entitled  to  the  accretion  to  such 
property.26 

Michigan.  The  courts  of  Michigan  hold  to  the  rule  that 
the  soil  of  the  beds  of  inland  lakes  in  that  state  belongs  to  the 
riparian  owner,  and  not  to  the  state.27 

Minnesota.    The  riparian  owner  on  a  navigable  water  takes 

"Washington  Ice  Co.  v.   Short-  23Barney   v.    Keokuk,   94    U.    S. 

all,  101  111.  46,  40  Am.  Rep.  196.  324,  24  L.  ed.  224. 

20Ross  v.  Faust,  54  Ind.  471,  23  24Handly's    Lessee    v.    Anthony, 

Am.  Rep.  655.  18  U.  S.  374,  5  L.  ed.  113. 

21Musser    v.    Hershey,    42    Iowa  25Strange  v.  Spaulding,  17  Ky.  L. 

356;   Barney  v.  Keokuk,  94  U.   S.  305,  29  S.  W.  137- 

324,  24  L.  ed.  224.  26Kennedy  v.  Municipality  No.  2, 

22Moffett  v.  Brewer,  i  G.  Greene  10  La.  Ann.  54. 

(Iowa)   348.  27Clute   v.    Fisher,   65   Mich.   48, 

31  N.  W.  614. 


353  RIPARIAN   RIGHTS  §    324 

title  to  high-water  mark  only.28  But  the  court  in  that  case, 
page  (5201)'  says:  "While  the  title  of  a  riparian  owner  on 
navigable  or  public  waters  extends  to  ordinary  low-water 
mark,  yet  it  is  unquestionably  true  that  his  title  is  not  absolute, 
except  to  ordinary  high-water  mark."  And  as  to  the  inter- 
vening space  "the  title  of  the  riparian  owner  is  qualified  or 
limited  to  the  public  right."  And  again  (521)  "within  the 
banks,  and  below  high-water  mark,  the  public  right  is  su- 
preme." The  rights  of  riparian  owners  on  the  banks  of  Lake 
Minnetonka,  a  navigable  lake  of  large  size,  in  Hennepin  Coun- 
ty, Minnesota,  was  before  the  court  for  consideration  in  the 
Carpenter  case. 

Missouri.  A  riparian  proprietor  on  a  navigable  stream 
holds  only  to  the  water's  edge.  A  part  of  a  fractional  section 
belonging  to  plaintiff  washed  away  and  a  "towhead"  formed 
in  the  river  between  plaintiff's  land  and  an  island  opposite 
thereto,  and  land  gradually  accrued  to  the  "towhead"  and  ex- 
tended toward  plaintiff's  lands  and  within  the  limits  of  his 
original  boundary.  It  was  held  that  the  land  was  not  an 
accretion  to  the  plaintiff's  lands.29 

New  Hampshire.  Where  the  channel  of  a  river  has  been 
gradually  wearing  away  the  soil  on  defendant's  side  of  a 
river  and  land  has  been  gradually  forming  on  the  opposite 
shore  owned  by  the  plaintiff,  the  channel  so  formed  must  be 
regarded  as  the  true  channel  and  plaintiff  will  be  the  owner 
of  the  land  so  formed  to  his  shore  as  an  accretion.80 

New  Jersey.  So  too,  the  state  of  New  Jersey  holds  sub- 
stantially to  the  same  rule.31  And  it  is  said  the  soil  under 
navigable  waters  was  not  granted  to  the  United  States  but 
was  reserved  to  the  respective  states  at  the  close  of  the  Revolu- 

28Carpenter     v.     Hennepin,     56  97  Am.  Dec.  561,  2  Am.  Rep.  165. 

Minn.  513,  58  N.  W.  295.  31Stevens  v.  Patterson  &  N.  Ry. 

29Cox  v.  Arnold,  129  Mo.  337,  31  Co.,  34  N.  J.  L.  (5  Vroom)  532,  3 

S.  W.  592,  50  Am.  St.  450.  Am.  Rep.  269. 

30Gerrish  v.  Clough,  48  N.  H.  9, 


§    324  SURVEYING  AND   BOUNDARIES  354 

tionary  War.32  New  Jersey  holds  that  the  state  owns  the 
fee  to  the  soil  under  water  between  the  exterior  lines  of  piers 
and  the  state  line  in  the  Hudson  river.33 

New  York.  The  state  owns  the  soil  of  the  beds  of  bays 
opening  in  to  the  sea.34  And  title  to  the  soil  of  the  beds  of 
waters  in  which  the  tide  ebbs  and  flows  is  in  the  state  as 
successor  of  the  king.35 

North  Carolina.  North  Carolina  holds  that  riparian  owner 
owns  to  the  middle  of  the  stream  subject  to  public  rights.36 

Ohio.  Substantially  the  same  rule  has  been  laid  down  in 
Ohio  as  in  North  Carolina  where  riparian  proprietor  owns 
to  the  middle  of  stream.37 

Oregon.  Where  a  navigable  river  was  meandered  in  mak- 
ing the  government  survey  and  the  United  States  has  granted 
the  land  bounded  by  the  meandered  line,  the  grantee  takes  to 
the  river.  The  stream  and  not  the  meander  line  is  the  true 
boundary.  Accretion  to  such  land  belongs  to  the  riparian 
owner.88 

Pennsylvania.  The  bed  and  channel  of  the  Delaware  river 
belong  respectively  to  the  states  of  Pennsylvania  and  New 
Jersey.39  And  the  same  case  holds  that  the  title  of  the 
riparian  owners  extends  only  to  low-water  mark.  And  again 
all  title  to  beds  of  navigable  streams  below  low-water  mark 
belongs  to  the  state.40 

Tennessee.  Accretion  to  the  main  shore  belongs  to  the 
owner  of  the  shore.  The  riparian  owner  is  entitled  to  all  ac- 
cretion and  to  follow  the  river  to  low-water  mark.  In  this 

82Pollard's  Lessee  v.  Hagan,  44  37Walker    v.    Board    of    Public 

U.  S.  (3  How.)  212,  ii  L.  ed.  565.  Works,  16  Ohio  540. 

83Attorney    General    v.    Hudson  38Minto  v.  Delaney,  7  Ore.  337. 

Tunnel  R.  Co.,  27  N.  J.  Eq.  176.  39Tinicum  Fishing  Co.  v.  Carter, 

34Smith  v.  Levinus,  8  N.  Y.  472.  61   Pa.  St.   n,  100  Am.  Dec.  597; 

86People  v.  New  York  &c.   Co.,  Simpson  v.  Neill,  89  Pa.  St.  183. 

68  N.  Y.  71.  4°Simpson   v.    Neill,   89   Pa.    St 

36Hodges    v.    Williams,    95    N.  183. 
Car.  331,  59  Am.  Rep.  242. 


355  RIPARIAN   RIGHTS  §    324 

case  the  description  was :  "246  chains  and  6  links  to  a  cotton- 
wood  tree  marked  W  &  C  on  the  banks  of  a  chute  of  the 
Mississippi  river,  thence  down  said  river  with  its  meanderings 
south,"  etc.41 

Texas.  Accretion  by  alluvium  belongs  to  the  riparian 
owner.  This  principle  applies  to  lands  bordering  on  navigable 
and  nonnavigable  streams.  A  description  calling  for  the  Rio 
Grande  and  its  meanderings  as  one  of  the  boundaries  of  the 
tract  will  follow  the  shore  as  it  may  be  changed  by  gradual 
and  imperceptible  means.42  An  island  lay  in  the  center  of  a 
stream  and  the  main  channel  thereof  divided  and  passed, 
about  equally,  on  both  sides  of  the  island.  Plaintiff  and  de- 
fendant were  the  owners  of  opposite  shores.  It  was  held  that 
the  island  belonged  to  the  two  claimants  and  that  the  boundary 
line  between  them  should  be  run  through  the  center  of  the 
island.43 

Vermont.  A  riparian  owner  on  a  nonnavigable  stream 
takes  title  to  the  soil  of  the  bed  of  such  stream  to  the  center 
of  the  stream,  and  a  flat  in  front  of  riparian  owners  along  said 
stream  is  to  be  divided  by  extending  a  line  from  the  division 
line  between  the  riparian  owners  at  the  old  bank  to  the  nearest 
point  on  the  new  shore  line.44 

Wisconsin.  The  owner  of  the  bank  of  a  navigable  stream 
by  purchase  from  the  government  is  presumed  to  be  the  owner 
of  the  bed  of  the  stream  to  the  middle  thereof,  but  if  title  be 
acquired  from  private  person  this  presumption  is  not  con- 
clusive.45 Where  the  government  makes  a  survey  of  several 
islands  in  a  navigable  river,  omits  to  survey  one  of  such  islands, 

41Posey   v.   James,   75   Tenn.    (7  45Norcross  v.  Griffiths,  65  Wis. 

Lea)   98.  599,   27   N.   W.  606,   56  Am.   Rep. 

42Denny  v.   Cotton,  3  Tex.   Civ.  642;  Delaplaine  v.  Chicago  &c.  Ry. 

App.  634,  22  S.  W.  122.  Co.,  42  Wis.  214,  24  Am.  Rep.  386; 

43Strange   v.    Spaulding,   17   Ky.  Walker  v.  Shepardson,  4  Wis.  486, 

L.  305,  29  S.  W.  137-  65  Am.  Dec.  324- 

44Hubbard    v.    Manwell,    60    Vt. 
235,  14  Atl.  693,  6  Am.  St.  no. 


§    325  SURVEYING  AND  BOUNDARIES  356 

and  sells  all  of  the  islands  which  were  surveyed  and  the  lands 
on  both  sides  of  the  river,  the  unsurveyed  island  will  go  to 
that  riparian  owner  on  the  side  of  the  river  with  reference  to 
the  main  channel.48  The  state  of  Wisconsin  holds  to  the  rule 
that  the  state  is  the  owner  in  trust  for  legitimate  public  use 
of  the  beds  of  its  navigable  lakes,  and  that  it  can  not  convey 
that  right  for  private  use,  nor  can  it  abdicate  the  trust.47  It 
further  holds  that  a  pier  may  be  erected  by  a  riparian  owner 
in  aid  of  navigation  through  shoal  water  to  navigable  water.48 
If  a  party,  not  a  riparian  owner,  builds  a  pier  into  a  navigable 
lake,  it  may  be  abated  at  the  suit  of  the  attorney  general, 
though  such  pier  does  not  interfere  with  navigation.49  But 
as  we  have  seen  the  same  court  holds  that  a  riparian  owner 
takes  to  the  center  of  the  Mississippi  river,50  and  that  is  the 
rule  in  that  state  as  to  beds  of  navigable  streams. 

§  325.  Division  by  bisecting  angle  between  curved  shores. 
— In  the  state  of  Maine  and  some  other  jurisdictions  the  courts 
have  adopted  the  following  rule  for  the  division  of  flats,  or 
which  is  the  same  thing,  accretion:  To  divide  flats  between 
adjoining  riparian  proprietors,  draw  a  base  line  from  one 
corner  of  each  lot  to  the  other  and  run  a  line  from  each  end 
of  this  line  at  right  angles  to  low-water  mark.  If  by  reason 
of  the  curvature  of  the  shore,  the  lines  diverge  or  conflict  with 
each  other  the  gain  or  loss  is  to  be  divided  equally  between 
adjoining  lot  owners  by  bisecting  the  angles  made  by  the  di- 

46Chandos  v.  Mack,  77  Wis.  573,  lage    of    Pewaukee   v.    Savoy,    103 

46  N.  W.  803,  20  Am.  St.  139,  10  Wis.  271,  79  N.  W.  436,  50  L.  R.  A. 

L.  R.  A.  207.  836,  74  Am.  St.  859. 

47Hicks  v.  Smith,  109  Wis.  540,  *8Hicks  v.  Smith,  109  Wis.  540, 

85  N.  W.  512;  McLennan  v.  Pren-  85  N.  W.  512. 

tice,  85  Wis.  427,  55  N.  W.  764;  49Hicks  v.   Smith,  109  Wis.  54°. 

Priewe    v.    Improvement    Co.,    93  85  N.  W.  512. 

Wis.  534,  67  N.  W.  918,  33  L.  R.  A.  BOAnte  §  252 ;  Franzini  v.  Layland, 

645;    Mendota   Club    v.   Anderson,  120  Wis.  72,  97  N.  W.  499- 
101  Wis.  479,  78  N.  W.  185;  Vil- 


357  RIPARIAN   RIGHTS  §    326 

verging,  converging  or  conflicting  lines.51  This  is  in  confirma- 
tion of  the  rule  laid  down  in  other  states  and  discussed  in 
another  section  of  this  chapter.  Fig.  73.  However,  it  will  be 
noted  that  the  object  sought  by  all  of  the  courts  is  to  make 
an  equitable  division  of  the  flats  between  the  several  riparian 
proprietors.  Bends  in  a  stream  frequently  necessitate  chang- 
ing the  rule  or  in  a  variation  of  the  general  rule  with  reference 
to  a  division  of  flats  to  the  end  that  all  riparian  owners  be 
treated  equitably.52  And  it  is  said  that  if  the  land  be  situated 
on  a  convex  shore,  the  proportional  rule  should  still  be  fol- 
lowed, and  each  owner  would  be  entitled  to  the  same  pro- 
portion upon  the  outer  line  that  he  holds  upon  the  shore  line.53 
But  the  mere  fact  that  a  lot  is  situated  upon  a  headland  is  not 
enough  to  show  that,  in  the  division  of  flats  in  front  of  it, 
the  side  lines  should  diverge  or  converge,  as  the  case  may  be, 
in  case  there  be  other  lots  situated  adjacent  to  the  lot  in 
question  and  on  the  headland,  and  the  shore  is  not  convex.5* 

§  326.  Partition  of  land  on  inland  lakes. — The  rules  re- 
ferred to  in  the  preceding  section  pertain  to  land  bordering 
on  the  sea  or  to  lakes  of  considerable  size  and  it  is  said  that 
no  fixed  rule  can  be  laid  down  relative  to  the  division  of  lands 
bordering  on  small  lakes  having  irregular  shore  lines.  Each 
case  must  depend  on  the  facts  in  that  particular  instance,  and 
a  reasonable  division  must  be  arrived  at  so  as  to  do  justice  to 
all  of  the  riparian  owners.  And  it  is  said  in  some  cases  that 
if  the  lake  is  so  small  as  to  be  enclosed  wholly  within  the 
division  lines  of  a  single  section  the  bed  should  be  divided  by 
the  extension  of  such  sectional  lines.55  In  that  case,  the  court 
says :  "It  therefore  becomes  apparent  that  the  true  and  only 

61Emerson  v.  Taylor,  9  Maine  42,          53Morris  v.   Beardsley,  54  Conn. 
23  Am.   Dec.  53i ;   Treat  v.   Chip-      338,  8  Atl.  139. 
man,  35  Maine  34.  54Winnisimmet  v  Wyman,  i;  Al 

82Ludwig  v.  Overly,  19  Ohio  Circ.      len   (Mass.)  432. 
Ct.  709.  6  o    c.  D.  690.  55Clute  v.  Fisher,  65  Mich.  48,  31 

N.  W.  614. 


§    326  SURVEYING  AND  BOUNDARIES  358 

rule  to  give  effect  and  harmony  to  these  decisions,  and  place 
the  ownership  of  the  bed  of  this  lake  in  some  person  or  per- 
sons, so  that  the  extent  and  boundary  lines  of  such  ownership 
may  be  easily  ascertained,  is  to  invest  the  holder  of  the  title 
of  any  fractional  subdivision  of  a  section  bordering  upon  this 
lake  with  the  ownership  of  the  bed  of  the  lake  to  the  lines  of 
subdivision  as  they  would  be  if  continued  through  or  into  the 
lake."  This  rule  is  of  doubtful  force  if  to  be  applied  generally. 
It  may  be  equitable  to  so  divide  the  bed  of  a  small  lake  lying 
wholly  within  the  subdivision  lines  of  a  single  section,  but  it 
would,  or  might,  be  most  inequitable  to  so  divide  the  bed  of  a 
lake  lying  in  more  than  one  section.  The  same  court  so  decides 
and  lays  down  the  rule:  The  division  of  the  bed  of  a  small 
lake,  but  one  of  considerable  size,  "is  to  be  determined  without 
reference  to  the  extension  of  such  lines,  but  by  the  principles 
governing  the  rights  of  riparian  proprietors."58  Then  the 
general  shape  of  the  lake  whether  round  or  long  should  be 
considered.57 

56Grand  Rapids  Ice  &  Coal   Co.          "Scheifert  v.   Briegel,  90  Minn, 
v.  South  Grand  Rapids  Ice  &  Coal       125,  96  N.  W.  44,  63  L.  R.  A.  296, 
Co.,    102    Mich.    227,    60    N.    W.      101  Am.  St.  399;  ante  §  301. 
681,  25  L.  R.  A.  815,  47  Am.  St. 
516. 


CHAPTER  XV 

RESTORATION  OF  LOST  OR  OBLITERATED  CORNERS  AND 
SUBDIVISION  OF  SECTIONS 


Sec.  Sec. 

327.  Generally.  350. 

328.  Special  information. 

329.  An  obliterated  corner. 

330.  Private    surveyors.  351. 

331.  Accurate   knowledge   original 

survey   necessary.  352. 

332.  Instructions    issued. 

333.  Double  sets  of  corners.  353- 

334.  Method  now  followed. 

335.  Limitation  on  errors.  354- 

336.  Initial  surveys. 

337.  Territory  northwest  of  Ohio 

River.  355. 

338.  Townships  west  of  the  Mus- 

kingum. 

339.  United    States   military   tract 

in  Ohio.  356. 

340.  Subdividing  sections. 

341.  General  rules  and  deductions.      357- 

342.  Extinct    corners    and    identi- 

fication of  memorials. 

343.  Exceptional   cases. 

344.  Magnetic   declination.  358. 

345.  Marks  on  monuments  of  sur- 

vey. 

346.  Restoration    of    corners     on 

base     lines     and     standard 
parallels. 

347.  What  are  standard  corners?      359- 

348.  Restoration    of    lost    closing 

corners  in  certain  cases. 

349.  The  proportions  to  be  used. 

359 


Restoration  of  township  cor- 
ners common  to  four  town- 
ships. 

Restoration  of  corners  com- 
mon to  two  townships. 

Restoration  of  closing  cor- 
ners.. 

Restoration  of  interior  sec- 
tion corners. 

Restoration  of  quarter-sec- 
tion corners  on  township 
boundaries. 

Restoration  of  quarter-sec- 
tion corners  on  closing 
section  lines  between  frac- 
tional sections. 

Restoration  of  interior  quar- 
ter-section corners. 

Where  double  corners  were 
originally  established,  one 
of  which  is  known  to  re- 
store the  other. 

Where  double  corners  were 
originally  established  and 
both  are  missing — To  re- 
store the  one  established 
when  the  township  line 
was  run. 

Where  double  corners  were 
originally  established,  and 
both  are  lost— To  restore 
the  one  established  when 


SURVEYING   AND   BOUNDARIES 


360 


Sec. 

the  township  was  sub- 
divided. 

360.  Where    triple     corners    were 

originally  established  on 
range  lines  one  or  two  of 
which  have  become  ob- 
literated— To  restore  either 
of  them. 

361.  Where    triple    corners     were 

originally  established  on 
range  lines,  all  of  which 
are  missing — To  restore 
same. 

362.  Re-establishing  meander  cor- 

ners. 

363.  Restoration  of  fractional  sec- 

tion lines. 

364.  Records. 

365.  Subdivision  of  sections. 

366.  Subdivision    of    sections    into 

quarters. 

367.  Subdivision  of  fractional  sec- 

tions. 

368.  Subdivision     of     quarter-sec- 

tions  into  quarter-quarters. 

369.  Subdivision       of       fractional 

quarter-sections. 

370.  Proportionate    measurement. 

371.  Equitable  part  of  surplus  ap- 

portioned to  entire  line. 

372.  Distinction     between     corner 

and  monument. 

373.  Monuments  and  accessories. 

374.  An  existent  or  known  corner. 

375.  Character   of  original   monu- 

ments and  accessories. 

376.  What  is  a  lost  corner? 

377.  Proportional    measurement. 


Sec. 

378.  Single  proportionate  measure- 

ment 

379.  Double   proportionate 

measurement. 

380.  To    re-establish    lost     corner 

common  to  four  townships. 

381.  To  restore  corner  common  to 

four  townships  where  the 
lines  from  three  directions 
only  have  been  established. 

382.  To  restore  lost  meander  cor- 

ner. 

383.  Restoring     lost     corners     on 

broken  boundaries. 

384.  Restore    a    lost    closing    cor- 

ner on  standard  parallel. 

385.  Government   corners   con- 

clusive. 

386.  Obliterated   meander  corners. 

387.  Irreconcilable    and    inconsist- 

ent calls. 

388.  Original   corners   can   not  be 

corrected  by  court. 

389.  Survey     made     under     state 

law. 

390.  Where  government  survey  is 

grossly  fraudulent. 

391.  Apportion     distance    between 

two  known  corners  to  es- 
tablish lost  corner. 

392.  Witness  trees. 

393.  Lost    corner    on    standard 

parallel. 

394.  Variation     between     meander 

line   and    field-notes. 

395.  Courses  and  distances  yield  to 

fixed    monuments. 

396.  Must   regard    field-notes   and 

must  search  for   corners. 


361        %  RESTORATION  OF  LOST  CORNERS  §   328 

§  327.  Generally.— In  this  chapter  we  quote  extensively 
from  a  circular  issued  by  the  general  land  office,  revised  as  of 
June  i,  1909,  setting  forth  fully  the  instructions  of  the  com- 
missioner thereof  to  local  surveyors,  on  the  restoration  of 
lost  or  obliterated  corners,  and  the  subdivisions  of  sections. 

The  practitioner  will  find  the  instructions  ample  in  most 
cases.  However,  he  should,  first  of  all,  carefully  examine  the 
field-notes  of  the  original  survey,  in  a  given  case,  to  ascer- 
tain whether  it  was  made  under  special  or  unusual  instructions 
of  the  surveyor-general.  If  so  made,  he  should  take  into  con- 
sideration such  special  instructions,  in  applying  the  rules  in 
this  chapter.  He  will  find,  in  the  earlier  surveys,  that  the 
instructions  were  not  uniform  and  were  executed  with  less 
accuracy,  than  at  a  later  period.  Furthermore,  in  a  few  cases, 
he  will  find  that  instructions  sent  out  by  the  acting  commis- 
sioner to  local  surveyors  were  at  variance  with  the  law.  If 
sections  were  subdivided  under  such  erroneous  instructions 
years  ago,  the  local  surveyor  must  take  them  into  considera- 
tion and  should  not  disturb  lines  long  abided  by,  though  erro- 
neous. The  references  will  be  to  "Restoration  of  Lost  or 
Obliterated  Corners,"  and  will  be  abbreviated  thus,  "R.  L.  C." 

§  328.  Special  information. — When  a  local  surveyor  de- 
sires special  information  relative  to  the  proper  method  of 
restoring  lost  or  obliterated  corners  marking  the  government 
survey  of  a  designated  section,  when  the  question  presents  dif- 
ficult and  unusual  problems,  he  should  write  the  commissioner 
of  the  general  land  office  at  Washington.  Owing  to  the  very 
large  number  of  inquiries  received  by  that  official  from  county 
and  local  surveyors  throughout  the  country,  embracing  a 
variety  of  propositions,  he  deemed  it  advisable  to  formulate 
and  issue  advice  in  pamphlet  form  to  all  such  inquiries,  under 
the  head  of  "Restoration  of  Lost  or  Obliterated  Corners,  and 
Subdivision  of  Sections/*  This  most  important  document  was 
issued  in  1909,  and  reprinted  in  1916,  and  should  be  in  the 


SURVEYING  AND  BOUNDARIES  362 

hands  of  every  surveyor.  The  document  is  an  expression  of 
the  land  office  on  that  subject,  based,  of  course,  upon  the 
several  acts  of  Congress  authorizing  the  surveys  of  public 
lands,  and  the  decisions  of  the  federal  and  state  courts.  Should 
the  surveyor  be  unable  to  secure  the  desired  information  from 
that  document  or  from  this  work,  -he  should  write  that  offi- 
cial, giving  full  and  exact  information  as  to  section,  town  and 
range,  and  clearly  set  out  the  information  desired.  It  might 
be  quite  desirable  to  send  a  diagram  of  the  section  or  sections 
under  consideration,  referring  to  the  corners  or  lines  by  letter 
or  number.  The  citations  herein  will  be  to  "Restoration  of 
Lost  or  Obliterated  Corners  and  the  Subdivision  of  Sections." 
This,  however,  will  be  abbreviated,  and  the  citation  will  ap- 
pear, "Restoration  of  Lost  Corners,"  written  R.  L.  C.  giving 
the  number  of  the  section  to  which  reference  is  made.1 

§  329.  An  obliterated  corner. — "An  obliterated  corner" 
within  the  meaning  of  that  work,  is  one  where  there  is  no 
visible  evidence  to  be  found  of  its  location,  as  originally  es- 
tablished. Still  its  correct  location  may  have  been  preserved 
by  acts  of  adjacent  land  owners,  in  building  fences  or  other- 
wise, and  by  the  memory  of  those  who  once  knew  and  now 
recollect  the  location  thereof.  But  it  is  said  that  a  "lost  corner 
is  one  whose  position  can  not  be  determined,  beyond  reasonable 
doubt,  either  from  original  marks,  or  reliable  external  evi- 
dence."2 The  surveyor  should  not  treat  a  corner  as  lost  until 
he  has  exhausted  all  means  of  fixing  its  location  aside  from 
the  determination  thereof,  by  a  measurement  to  other  corners. 

§  33O-  Private  surveyors. — Former  United  States  deputy 
surveyors,  now  engaged  as  private  surveyors,  must  act  under 
somewhat  different  rules  of  law  from  those  followed  in  mak- 
ing original  surveys.  He  should  distinguish  between  those 
provisions  which  govern  a  government  surveyor  and  those 

*R.  L.  C.  i. 

2R.    L.    C.    2 


363  -  RESTORATION   OF  LOST   CORNERS  §    333 

which  apply  to  the  retracement  of  lost  lines  or  re-establishment 
of  lost  corners.3 

§  331.     Accurate  knowledge  original  survey  necessary. — It 

is  of  general  knowledge  that,  in  order  to  properly  restore  lost 
boundaries  of  the  public  lands,  the  surveyor  should  have  a  sub- 
stantial accurate  knowledge  of  the  manner  in  which  the  town- 
ships were  originally  subdivided,  and  without  such  informa- 
tion, he  can  not  hope  to  secure  the  best  results.4 

§  332.  Instructions  issued. — It  is  well  known  that  different 
sets  of  instructions  were  issued  by  the  land  department  to  the 
public  surveyors  for  the  survey  of  various  regions,  covering  a 
period  from  1785,  the  date  of  the  adoption  of  the  rectangular 
system,  to  the  present  time.  It  is  said  the  earlier  rules  were 
given  to  the  deputy  surveyors  in  manuscript  form  or  in  circu- 
lars sent  out,  and  that  no  copies  of  these  instructions  are  to 
be  had  for  distribution.  Later,  however,  these  instructions 
were  sent  out  in  book  form,  covering  the  years  1855,  1871, 
1890,  1894  and  1902.  The  supply  of  these,  except  for  the 
year  1902,  is  exhausted.  The  manual  of  1902,  as  well  as  the 
advance  sheets  for  the  manual  of  1919,  may  be  had  at  cost  by 
writing  the  superintendent  of  documents,  Washington.5 

§  333-  Double  sets  of  corners. — To  the  end  that  the  sur- 
veyor may  have  exact  information  relative  to  surveys  made 
at  different  periods  to  enable  him  to  properly  solve  difficult 
problems,  we  shall  briefly  review  the  several  acts  of  Congress 
pertaining  to  this  subject.  It  will  be  noted  that  compliance 
with  the  different  acts  of  Congress  covering  the  period  of 
the  earlier  surveys  to  the  present  time,  has  resulted  in  two  sets 
of  corners  on  township  lines  being  established  in  some  in- 
stances. In  other  instances,  three  sets  of  corners  were  estab- 
lished on  the  range  lines.  The  system  now  in  vogue  makes 
but  one  set  of  corners  in  township  boundaries  except  on  base 

3R.  L.  C.  3.  5R.  L.  C.  5. 

*R.  L.   C.  4. 


§    334  SURVEYING  AND  BOUNDARIES  364 

and  correction  lines,  and  in  some  exceptional  cases.6  The 
surveyor  should  bear  in  mind  that  where  two  sets  of  corners 
are  found  on  township  boundaries,  the  first  set  was  estab- 
lished at  the  time  the  exterior  lines  of  the  township  were 
run.  Those  on  the  north  boundary  belong  to  the  sections  lying 
to  the  north  of  said  line.  Those  on  the  west  boundary  of  the 
township  belong  to  the  sections  lying  to  the  west  of  that  line. 
The  other  set  of  corners  was  established  at  the  time  the  town- 
ship was  subdivided.  It  will  be  readily  seen  that  this  method 
resulted  in  double  corners  on  the  four  sides  of  each  township. 

As  noted  above,  three  sets  of  corners  were  sometimes  es- 
tablished on  the  range  lines.  Where  this  is  the  case,  the  sub- 
divisional  surveys  were  made  in  the  same  manner,  except  that 
the  east  and  west  section  lines  were  not  closed  upon  the  corners 
theretofore  established  on  the  east  boundary  of  the  township, 
but  were  run  due  east  from  the  last  interior  section  corner,  and 
new  corners  planted  at  the  intersection  of  that  line  with  the 
east  side  of  the  township.7 

§  334.  Method  now  followed. — The  method  now  followed 
is  much  simpler,  where  regular  conditions  are  found.  In  the 
subdivision  of  a  township,  the  subdivision  lines  are  initiated 
at  the  section  corners  on  the  south  boundary  of  the  township. 
Such  lines  also  close  on  the  corners  previously  planted  on  the 
east,  north  and  west  boundaries  of  a  township.  But  when  the 
north  boundary  is  a  base  line  or  a  standard  parallel,  new  cor- 
ners are  set  thereon.  These  corners  are  called  closing  cor- 
ners. However,  in  some  cases,  owing  to  conditions,  such  as, 
in  the  subdivision  of  a  township  in  which  there  is  no  south 
boundary  or  in  which  it  is  inaccessible,  the  subdivisional  lines 
have  been  initiated  on  the  north  boundary  of  the  township  and 
extended  southerly.8  Hence,  the  local  surveyor  should  have  a 
full  knowledge  of  the  methods  pursued  in  the  subdivision  of 

«R.  L.  C.  7.  8R.  L-  C.  8. 

7R.  L.  C.  7. 


365  RESTORATION   OF  LOST   CORNERS  §    336 

townships  by  the  original  surveyor.  He  should  have  full 
notes  of  the  original  survey  and  where  his  work  is  along  town 
or  range  lines,  he  should  have  copies  of  the  original  plat. 
Then,  again,  it  will  be  found  that  a  great  many  plats  do  not 
show  the  second  set  of  corners,  established  in  the  original 
survey  of  the  adjoining  township  made  subsequently.  The 
utmost  care  must  be  used  to  guard  against  the  confusions  of 
corners.9 

§  335.  Limitation  on  errors. — In  recent  surveys,  the  in- 
structions sent  out  fix  a  strict  limitation  on  the  amount  of 
errors  which  will  be  permitted  to  stand.  Under  this  rule, 
no  new  township  exteriors  or  sectional  lines  "shall  depart 
from  a  true  meridian  or  east  and  west  line  more  than  twenty- 
one  minutes  of  arc;  and  that  when  a  random  line  is  found 
liable  to  correction  beyond  this  limit,  a  true  line  on  a  car- 
dinal course  must  be  run,  setting  a  closing  corner  on  the  line 
to  which  it  closes."  It  will  be  noted  that  new  surveys  clos- 
ing on  old  surveys  or  irregular  work  will  be  fruitful  of  double 
corners.  The  local  surveyor  who  attempts  to  retrace  lines  of 
such  surveyors  must  have  full  knowledge  of  all  of  the  condi- 
tions surrounding  the  original  surveys,  including  the  "excep- 
tional methods  of  subdivision."10 

§  336.  Initial  surveys. — The  first  law  pertaining  to  the  sur- 
vey of  the  public  lands  was  passed  by  the  Congress  of  the 
Confederation  in  1785.  It  provided  for  the  survey  of  the 
"Western  Territory"  and  authorized  that  territory  to  be  di- 
vided into  "townships  of  six  miles  square,  by  lines  running 
due  north  and  south,  and  others  crossing  them  at  right  angles" 
as  near  as  might  be.  It  was  provided  therein  that  the  first 
line  running  north  and  south  should  begin  on  the  Ohio  river 
at  a  point  due  north  from  the  western  terminus  of  a  line  run 
as  the  south  boundary  of  the  state  of  Pennsylvania,  Ordi- 

9R.  L.  C.  9. 
ioR.  L.  C.  10. 


§    337  SURVEYING  AND  BOUNDARIES  366 

narily,  this  line  would  be  termed  the  principal  meridian.  The 
first  line  running  east  and  west  should  begin  at  the  same  point 
and  extend  westerly  through  the  whole  territory.  This  line 
would  be  termed  the  base  line.  Only  the  exterior  lines  of  the 
townships  were  then  surveyed.  The  plats,  however,  were 
marked  showing  the  subdivision  of  the  townships  into  sections 
one  mile  square.  These  were  numbered  from  one  to  thirty- 
six,  commencing  with  No.  i,  in  the  southeast  corner  of  the 
township  and  running  from  south  to  north.  This  brought 
section  36  in  the  northwest  corner  of  the  township.  Mile 
corners  were  established  on  the  township  lines.  This  survey 
forms  a  part  of  the  present  state  of  Ohio  and  is  known  as 
"the  Seven  Ranges."11 

§  337.  Territory  northwest  of  Ohio  river. — In  1796,  Con- 
gress passed  an  act  providing  for  the  survey  of  the  "territory 
northwest  of  the  Ohio  River,  and  above  the  mouth  of  the 
Kentucky  River."  This  act  provided  in  part  for  dividing  such 
lands  as  had  not  theretofore  been  surveyed  "by  north  and  south 
lines  run  according  to  the  true  meridian,  and  by  others  cross- 
ing them  at  right  angles,  so  as  to  form  townships  of  six  miles 
square,"  etc.  This  act  also  provided  that  "one-half  of  said 
townships,  taking  them  alternately,  should  be  subdivided  into 
sections  containing,  as  nearly  as  may  be,  six  hundred  and 
forty  acres  each,  by  running  through  the  same,  each  way, 
parallel  lines  at  the  end  of  every  two  miles :  and  by  marking  a 
corner  on  each  of  said  lines  at  the  end  of  every  mile."  So, 
also,  we  find  therein:  "the  sections  shall  be  numbered,  re- 
spectively, beginning  with  the  number  i  in  the  northeast  sec- 
tion, and  proceeding  west  and  east,  alternately  through  the 
township,  with  progressive  numbers  till  the  thirty-sixth  be 
completed."  It  should  be  noted,  this  method  of  numbering 
the  sections  is  still  in  use.12 

"R.  L.  C.  ii. 
"R.  L.  C.  12. 


367         -  RESTORATION    OF   LOST    CORNERS  §    339 

§  338.  Townships  west  of  the  Muskingum. — In  1800,  the 
foregoing  act  was  amended  by  requiring  the  "townships  west 
of  the  Muskingum  which  are  directed  to  be  sold  in  quarter- 
townships,  to  be  subdivided  into  half-sections  of  three  hundred 
and  twenty  acres  each,  as  nearly  as  may  be,  by  running  parallel 
lines  through  the  same  from  east  to  west,  and  from  south  to 
north,  at  the  distance  of  one  mile  from  each  other,  and  mark- 
ing corners,  at  the  distance  of  each  half  mile  on  the  lines  run- 
ning from  east  to  west,  and  at  the  distance  of  each  mile  on 
those  running  from  south  to  north.  And  the  interior  lines 
of  townships  intersected  by  the  Muskingum,  and  of  all  town- 
ships lying  east  of  that  river,  which  have  not  been  heretofore 
actually  subdivided  into  sections,  shall  also  be  run  and  marked, 
*  *  *  and  in  all  cases  where  the  exterior  lines  of  the  township 
thus  to  be  subdivided  into  sections  or  half-sections,  shall  exceed 
or  shall  not  extend  six  miles,  the  excess  or  deficiency  shall  be 
especially  noted,  and  added  to  or  deducted  from  the  western 
or  northern  ranges  of  sections  or  half-sections  in  such  town- 
ships, according  as  the  error  may  be  in  running  the  lines  from 
east  to  west  or  from  south  to  north."  This  act  also  provided 
that  the  northern  and  western  tiers  of  sections  should  be  sold 
as  containing  only  the  quantity  expressed  on  the  plats,  and 
all  others  as  containing  the  complete  legal  quantity.13 

§  339.  United  States  military  tract  in  Ohio. — In  1796,  an 
act  was  passed,  providing  for  dividing  the  "United  States 
Military  Tract"  in  Ohio,  into  townships  five  miles  square,  each 
to  be  subdivided  into  quarter  townships  containing  four  thou- 
sand acres.14  The  act  of  1800,  amendatory  of  the  act  of  1796, 
authorized  the  subdivision  of  the  quarter  townships  into  lots 
of  one  hundred  acres,  bounded  as  nearly  as  practicable  by 
parallel  lines  one  hundred  and  sixty  perches  in  length  by  one 
hundred  perches  in  width.  This  subdivision  into  lots  was 

"R.  L.  C.  13. 
14R.  L.  C.  14. 


§    34°  SURVEYING  AND  BOUNDARIES  368 

made  on  the  plats  in  the  office,  and  the  actual  survey  was  only 
made  at  a  subsequent  time  when  a  sufficient  number  of  lots 
had  been  located  to  warrant  the  survey  being  made.  In  many 
cases  when  the  survey  was  made,  the  plat  and  ground  did  not 
agree  and  fractional  lots  on  plats  were  entirely  crowded 
out.  Hence,  it  is  quite  necessary  that  local  surveyors  have 
knowledge  of  such  fact.15 

§  340.  Subdividing  sections. — The  act  of  1805,  revised  in 
1873,  directs  the  subdivision  of  public  lands  into  quarter  sec- 
tions. It  sets  forth  three  principles  for  ascertaining  the 
boundaries  and  contents  of  public  lands.  A.  All  corners 
marked  by  the  surveyor  and  so  returned  shall  be  established 
as  the  proper  corners  of  the  sections  or  quarter-sections  which 
they  are  intended  to  designate,  and  corners  of  half  and  quar- 
ter-sections not  marked,  shall  be  established  as  nearly  as  pos- 
sible "equidistant  from  those  two  corners  which  stand  on  the 
same  line."16  Lines  actually  run  and  marked  are  established 
as  the  "proper  boundary  lines"  of  the  section  and  the  length 
of  such  lines  as  returned  shall  be  conclusive  as  to  the  true 
length  thereof.  The  boundary  lines  not  run  by  the  government 
surveyor  shall  be  determined  "by  running  straight  lines  from 
the  established  corners  to  the  opposite  corresponding  corners." 
In  fractional  townships  or  sections  where  no  opposite  corners 
were  or  could  be  established,  the  boundary  lines  shall  be  fixed 
"by  running  from  the  established  corners  due  north  and  south 
or  east  and  west"  as  the  case  may  be  "to  the  water  course,  In- 
dian boundary  line,  or  other  external  boundary  of  such  frac- 
tional township."17  The  contents  of  a  half-section  or  any  part 
thereof  as  returned  by  the  surveyor  "shall  be  held  and  con- 
sidered as  containing  the  one-half  or  the  one-fourth  part,  re- 
spectively, of  the  returned  contents  of  the  section  of  which 

15R.  L.  C.  14-15. 
16R.  L.  C.  16-17. 
"R.  L.  C.  18. 


369  RESTORATION   OF   LOST   CORNERS  §    34! 

they  make  a  part."18  The  contents  as  returned  are  conclusive 
on  subsequent  surveys  and  were  so  intended.19  The  act  further 
provided  that  "in  every  case  of  the  division  of  a  quarter-section 
the  line  for  the  division  thereof  shall  run  north  and  south," 
and  fractional  sections  containing  one  hundred  and  sixty  acres 
or  more  are  divided  in  like  manner  into  half-quarter  sections, 
but  fractional  sections  containing  less  than  one  hundred  and 
sixty  acres  are  not  divided.20  The  act  of  1824  provided  that 
the  President  might  at  his  discretion  to  promote  the  public 
interest,  "cause  the  lands  situated  on  any  river,  lake,  bayou,  or 
water  course"  to  be  "surveyed  in  tracts  of  two  acres  in  width, 
fronting  on  any  river,  bayou,  lake,  or  water  course,  and  run- 
ning back  to  the  depth  of  forty  acres."21  In  an  early  day 
lands  fronting  on  waters  were  frequently  surveyed  under  these 
and  other  special  instructions.  The  local  surveyor  should 
have  these  special  instructions. 

The  act  of  1832,  directed  the  subdivision  of  public  lands 
into  quarter-quarter  sections;  that  in  subdividing  a  half-quar- 
ter section,  the  dividing  line  should  run  east  and  west,  and 
that  fractional  sections  should  be  subdivided  under  regulations 
prescribed  by  the  secretary  of  the  treasury.  Under  such  in- 
structions, fractional  sections  containing  less  than  one  hun- 
dred and  sixty  acres,  or  the  residuary  portion  of  any  fractional 
section,  after  the  subdivision  into  as  many  quarter-quarter 
sections  as  it  is  susceptible  of  should  be  subdivided  into  lots, 
"each  containing  the  quantity  of  a  quarter-quarter  section  as 
nearly  as  practicable"  by  running  such  lot  lines  forming  tracts 
20  chains  wide.  The  lengths  of  the  lines,  and  the  areas  of  the 
lots  were  required  to  be  entered  on  the  plat.22 

§  341.  General  rules  and  deductions. — The  professions  will 
readily  deduce  from  the  foregoing  synopsis  of  the  several  acts 
the  following: 

18R.  L.  C.  19.  21  R.  L   C.  23. 

19R.    L.    C.    20.  22R.    L>    Q    24< 

2°R.  L.  C.  22. 


§    342  SURVEYING   AND   BOUNDARIES  370 

First.  That  the  lines,  corners  and  boundaries  of  the  survey 
of  the  public  lands  as  returned  by  the  surveyor-general  and 
approved  by  the  government  are  unchangeable. 

Second.  That  all  original  township,  section,  and  quarter- 
section  corners  so  established  are  conclusive,  "whether  the 
corner  be  in  the  place  shown  by  the  field-notes  or  not." 

Third.  All  quarter-quarter  corners  not  established  by  the 
government  surveyors  should  be  placed  on  a  straight  line  run 
between  the  section  and  quarter-section  corners  and  midway 
between  them,  "except  on  the  last  half  mile  of  section  lines 
closing  on  the  north  and  west  boundaries  of  the  township,  or 
on  other  lines  between  fractional  sections." 

Fourth.  All  subdivision  lines  of  sections,  running  between 
government  corners  must  be  straight  lines,  running  from  the 
proper  corner,  in  one  section  line,  to  its  opposite  corresponding 
corner. 

Fifth.  In  fractional  sections,  where  no  opposite  correspond- 
ing corner  has  been  established,  such  lines  must  be  run  due 
north  or  south  or  east  or  west,  as  near  as  may  be,  from 
the  proper  corner  to  the  boundary  of  the  fractional  section.23 
In  order  to  run  such  lines  properly,  mean  courses  should  be 
adopted.24 

§  342.  Extinct  corners  and  identification  of  memorials. — 
In  making  resurveys,  therefore,  all  extinct  corners  must  be 
"restored  to  their  original  location,"  Resort  should  always  be 
had  to  the  marks  in  the  field.  The  missing  corner  should  be 
identified  by  mounds,  pits,  line-trees,  bearing  trees,  hedges, 
streams,  etc.,  recorded  in  the  original  survey  if  possible.25 
These  afford  the  best  means  of  relocating  the  original  corner. 
Should  the  surveyor  be  unable  to  find  any  of  these  memorials 
on  the  ground,  after  a  careful  search,  he  may  receive  "clear 
and  convincing  testimony"  of  old  residents  as  to  the  place 

23R.    L.    C.    25-79.  25R.    L.    C.    26. 

2*R.  L.  C.  79;  ante  §  134. 


37  J  RESTORATION   OF   LOST    CORNERS  §    343 

where  the  original  corner  stood.26  Of  course,  all  changes  of 
local  corners  by  the  surveyor  will  be  subject  to  review  by  the 
courts.27 

§  343.  Exceptional  cases. — When  new  measurements  are 
made  on  a  single  line  to  determine  the  position  of  lost  corner, 
it  will  almost  invariably  happen  that  such  line  over-runs  or 
falls  short  of  the  distance  given  in  the  notes.  When  this  is  the 
case,  the  surveyor  should  always  fix  the  point  by  proportional 
measurement  on  lines  conforming  to  the  original  field-notes. 
There  can  be  no  departure  from  this  rule.28  It  frequently 
happens  that  the  relocated  corner  does  not  harmonize  with  the 
notes  in  all  directions.  In  that  event,  the  surveyor  may  be 
compelled  to  fix  the  point  with  reference  to  the  calls  of  one 
line  and  against  the  calls  of  another  line.  The  surveyor  should 
consider  all  of  the  surrounding  circumstances  and  then  fix 
the  point  by  rejecting  the  calls  most  liable  to  be  erroneous. 
"For  instance,"  say  the  instructions,  "if  the  line  between  sec- 
tions 30  and  31,  reported  78  chains  long,  .would  draw  the 
missing  corner  on  range  line,  i  chain  eastward  out  of  range 
with  the  other  corners,  the  presumption  would  be  strong,  that 
the  range  line  had  been  run  straight  and  the  length  of  the  sec- 
tion line  wrongly  reported,  because  experience  shows  that 
west  random  lines  are  regarded  as  less  important  than  range 
lines  and  more  liable  to  error."29  So,  too,  where  a  corner 
on  a  standard  parallel  has  been  obliterated,  it  is  entirely 
proper  to  assume  it  was  placed  in  line  with  the  other 
corners,  and  if  the  length  of  line  between,  say  sections  3  and 
4,  would  throw  the  closing  corner  into  the  township  lying 
north,  a  surveyor  would  properly  assume  that  the  older  survey 
of  the  standard  line  is  to  control  the  length  of  the  latter  and 
minor  line.  The  marks  or  corners  found  on  such  a  line  closing 
to  a  standard  parallel  fix  its  location,  but  its  length  should  be 

26R.  L.  C.  27.  28R.  L.  C.  29. 

27R.  L.  C.  28.  29R.  L.  C.  30. 


§    343  SURVEYING  AND  BOUNDARIES  372 

limited  by  its  actual  intersection,  at  which  point  the  lost  corner 
may  be  placed.30  As  we  have  seen  "all  corners  marked  in 
the  field  shall  be  established  as  the  corners  which  they  were 
intended  to  designate"  and  "the  length  of  lines  returned  by 
the  surveyors  shall  be  held  and  considered  as  the  true  length 
thereof,"  still  it  is  found  impossible  in  some  instances  to  ful- 
fill all  of  these  conditions.  In  such  cases,  the  surveyor  is 
obliged  to  choose,  by  the  exercise  of  a  wise  discretion,  which 
of  two  or  more  lines  must  yield.31 

The  commissioner  of  the  general  land  office  had  such  a 
question  up  for  consideration  which  involved  the  boundary 
between  the  states  of  Missouri  and  Kansas.  There  the  existing 
but  erroneous  closing  corner  was  some  distance  out  of  the  true 
boundary.  That  officer  held  that  in  subdividing  the  fractional 
section  the  surveyor  should  hold  to  the  boundary  as  a  straight 
line  and  should  not  take  such  existing  corner  as  the  proper 
corner  of  the  fractional  lots.  The  corner  was  taken  as  fixing 
the  boundary  between  the  two  lots  but  the  length  of  that  line 
extended  to  a  new  corner  placed  on  the  true  boundary.  The 
existing  original  corner  should  be  preserved,  but  it  should  not 
be  allowed  to  make  a  crook  between  section  corners  on  the 
state  boundary.32  But  we  are  told :  "It  is  only  in  cases  where 
it  is  manifestly  impossible  to  carry  out  the  literal  terms  of  the 
law  that  a  surveyor  can  be  justified  in  making  such  a  deci- 
sion."33 This  principle  has  been  recognized  in  restoring  sec- 
tion corners  common  to  two  townships.  In  such  cases,  the 
new  corner  should  be  placed  on  the  township  line.  Measure- 
ments may  be  made  to  corners  within  the  townships  in  order 
to  check  up  its  position  if  found  to  agree,  but  if  the  measure- 
ments place  the  corner  at  some  point  off  of  the  township  line, 
they  should  be  disregarded.34 

a°R.  L.  C.  31.  33R.  L.  c.  33. 

siR.  L.  C.  32.  34R.  L.  C.  34- 

32R.  L.  C.  33. 


373  RESTORATION   OF  LOST  CORNERS  §    345 

§  344.  Magnetic  declination.— -The  commissioner  of  the 
land  office  advises  against  the  use  of  the  magnetic  variation 
as  a  basis  for  locating  any  lost  line.  As  is  well  known,  it  can 
only  be  used  in  a  preliminary  search  for  evidence  of  the  loca- 
tion of  the  line.35  The  employees  of  the  government  are  for- 
bidden to  use  the  needle  in  determining  the  course  of  a  line. 
Government  officials  decline  to  advise  local  surveyors  as  to 
what  variation  to  use.  Local  magnetism  affects  the  needle 
more  or  less.  The  secular  change  of  declination  as  reported 
in  years  gone  by  can  not  be  relied  on.  The  variation  recorded 
in  the  notes  may  have  been  quite  incorrect.  The  daily  and 
annual  variation  and  defects  in  old  compasses  make  uncertain 
the  work  of  the  needle.36  Then  too,  a  large  amount  of  work 
was  done  prior  to  the  year  1864,  showing  variations  evidently 
inconsistent.  Prior  to  that  year  in  running  random  and  true 
lines  the  variation  was  given  for  each  line,  but  surveys  made 
thereafter  gave  the  true  course  of  the  true  line  thus,  "N.  89° 
45'  W.  on  a  true  line."  Hence,  the  words  east  and  west  as 
found  in  old  records  were  only  approximately  correct.37  The 
surveyor  should  make  the  astronomical  calculation  and  thus  de- 
termine the  true  line. 

§  345-  Marks  on  monuments  of  survey. — It  it  important 
that  the  surveyor  have  a  knowledge  of  the  more  important 
marks  on  monuments  or  cornerstones  or  posts.  Notches  made 
on  the  east  and  south  angles  of  an  interior  section  corner  indi- 
cate how  far  that  corner  is  from  the  east  and  south  lines  of 
the  township.  In  fractional  townships  the  markings  are  the 
same  as  though  township  was  complete.38  There  are  cases 
where  the  cornerpost  is  a  corner  of  two  townships  or  two  sec- 
tions only :  so  too,  it  is  not  uncommon  to  find  the  corner-stone 
to  have  been  turned  around  or  disturbed.  The  surveyor 
should  bear  this  in  mind.39  Grooves  cut  in  the  stone  or  post 

35R.  L.  C.  35.  38R.  L.  C.  39- 

s«R.  L.  C.  36.  39R.  L.  C.  40. 

37R.  L.  C.  37. 


§    346  SURVEYING   AND   BOUNDARIES  374 

on  township  or  range  lines  indicate  the  distances  to  the  corners 
of  the  township.  Thus,  two  grooves  on  the  north  and  four 
on  the  south  indicate  the  corner  to  sections  12,  13,  7,  and  i8.40 
The  letters  "W.  C."  upon  a  monument  mean  witness  corner — 
not  at  the  true  corner,  but  placed  on  safe  ground  at  a  course 
and  distance  given  in  the  notes.  "M.  C."  indicates  a  meander 
corner,  placed  on  an  exterior  line  at  a  given  distance  from  a 
section  corner.41  "S.  C."  means  a  standard  corner  on  a  stand- 
ard parallel,  belonging  to  two  sections  to  the  north  thereof. 
"C.  C."  indicates  a  closing  corner  on  the  same  line,  either  east 
or  west  of  the  standard  corner,  and  belonging  to  the  sections 
south  of  such  line.  The  letters  "C.  C."  are  also  used  where 
regular  lines  close  upon  a  boundary  of  a  state,  park,  reserva- 
tion, or  private  land  claim.42  Bearing  trees  are  marked  "B. 
T."  Two  chops  or  notches  on  the  opposite  sides  of  a  tree  show 
that  it  is  a  "line  tree."43 

§  346.  Restoration  of  corners  on  base  lines  and  standard 
parallels. — All  lost  corners  on  base  lines,  standard  parallels  or 
correction  lines,  should  be  restored  by  proportionate  measure- 
ments on  such  line.  The  surveyor  should  conform  "as  nearly 
as  practicable  to  the  original  notes."  He  will  join  the  nearest 
identified  original  standard  corners  on  opposite  sides  of  the 
missing  corner  and  by  proportionate  measure  fix  the  location 
of  such  lost  corner.44 

§  347-  What  are  standard  corners?— All  standard  town- 
ship, section,  quarter-section,  and  meander  corners  are  stand- 
ard corners.  Also  closing  corners  used  to  determine  the  loca- 
tion of  a  standard  parallel,  or  one  established  during  the  sur- 
vey thereof,  will,  with  the  standard  corners,  "govern  the  aline- 
ment  and  measurements  made  to  restore  lost  or  obliterated 
standard  corners,"  but  the  surveyor  should  not  allow  any 

4°R.  L.  C.  41.  «R.  L.  C.  44. 

«R.  L.  C.  42.  «R.  L.  C.  45. 

«R.  L.  C.  43. 


375  RESTORATION    OF    LOST    CORNERS  §    349 

other  closing  corners  to  control  the  restoration  of  standard 
corners  on  base  lines  or  standard  parallels.45 

§  348.  Restoration  of  lost  closing  corners  in  certain  cases. 
— What  the  original  surveyor  did  to  establish  a  designated 
corner,  the  local  surveyor  should  do  in  re-establishing  such 
corner.  That  is,  if  a  standard  parallel  had  been  initiated  from 
a  closing  corner  or  had  been  directed  toward  such  closing  cor- 
ner, such  closing  corner  will  be  restored  to  its  original  posi- 
tion by  proportionate  measurements  from  the  "corners  used 
in  the  original  survey"  to  fix  its  position.  That  is,  measure- 
ments from  corners  on  the  opposite  side  of  the  parallel  will 
not  in  any  manner  control  the  relocation.46  And  a  missing 
closing  corner  established  during  the  location  of  a  standard 
parallel  as  a  corner  from  which  to  project  surveys  south,  will 
be  re-established  by  considering  it  a  standard  corner.47 

§  349.  The  proportions  to  be  used.— If  the  surveyor  will 
keep  in  mind  the  preceding  discussion,  he  will  have  no  trouble 
in  fixing  the  proper  proportion  for  a  determination  of  the  loca- 
tion of  the  original  positions  of  the  lost  corner.  Generally,  it 
may  be  said,  "as  the  original  field-note  distance  between  the 
selected  known  corners  is  to  the  new  measure  of  said  dis- 
tance, so  is  the  original  field-note  length  of  any  part  of  the 
line  to  the  required  new  measure  thereof."  So,  too,  the  work 
may  be  verified  by  taking  the  sum  of  the  computed  lengths  of 
the  several  parts  of  the  line.  That  sum  should  make  the  new 
measure  of  the  whole  distance.48  It  must  be  remembered  that 
existing  original  corners  can  not  be  disturbed.  Hence,  dis- 
crepancies between  the  old  and  new  measurements  of  a  line 
adjoining  the  selected  original  corners  will  not  affect  measure- 
ments beyond  such  corners.  The  difference  will  be  distributed 
proportionately  to  the  several  parts  of  the  line  in  question. 
After  checking  over  the  work  by  a  measurement  to  the  nearest 

*5R.  L.  C.  46.  «R.  L.  C.  48. 

4«R.  L.  C.  47.  48R.  L.  C.  49. 


§    35°  SURVEYING  AND  BOUNDARIES  376 

known  corners,  new  corners  should  be  permanently  established. 
New  bearings  and  new  measurements  should  be  taken  to  per- 
manent objects  and  a  record  thereof  made  for  future  use.49 

§  350.  Restoration  of  township  corners  common  to  four 
townships. — There  are  two  cases  of  such  corners.  First,  where 
the  original  corner  was  established  with  reference  to  two  lines 
at  right  angles  to  each  other.  Second,  where  the  original 
corner  was  located  with  reference  to  measurements  on  one  line 
only.  An  example  of  the  latter  would  be  a  corner  on  a  guide 
meridian.50  A  corner  subject  to  first  conditions  will  be  es- 
tablished by  running  a  line  connecting  the  nearest  known 
corners  on  the  meridional  township  lines,  north  and  south  of 
the  lost  corner.  Measurements  will  be  taken  and  a  temporary 
corner  will  be  established  at  the  proper  proportionate  distance. 
This,  of  course,  will  fix  the  corner  in  a  north  and  south  di- 
rection only.  The  nearest  known  corners  on  the  latitudinal 
township  lines  on  either  side  of  the  lost  corner  will  then  be 
run  and  measured,  and  a  temporary  corner  planted  on  such 
line  at  the  proper  proportionate  distance.  This  will  fix  the 
point  in  an  east  and  west  direction  only.  Through  the  first 
temporary  corner  run  a  line  east  or  west,  as  the  case  may 
require,  and  through  the  second  temporary  corner  run  a  line 
north  or  south,  as  the  case  may  require.  The  point  of  inter- 
section of  the  two  lines  so  run  will  mark  the  position  of  the 
restored  township  corner.51  See  Fig.  87.  The  restoration  of 
a  lost  corner  on  a  township  line  under  the  second  condition 
referred  to  above,  will  be  accomplished  by  a  measurement  be- 
tween the  nearest  known  corners  on  opposite  sides  of  such 
lost  corner  and  proportioning  the  distances  according  to  gov- 
ernment survey.  The  corner  will  be  placed  on  a  direct  line 
between  such  known  corners.52 

«R.  L.  C.  50.  51R.  L.  C  52. 

soR.  L.  C.  51.  52R.  L.  C.  53. 


377 


RESTORATION   OF  LOST   CORNERS 


§    352 


§  351.  Restoration  of  corners  common  to  two  townships. — 
jConnect  the  two  nearest  known  corners  on  the  township  line 
by  a  right  line.  Establish  the  lost  corner  thereon,  by  propor- 
tionate measurement.  This  should  be  verified  approximately, 


Fiq.87 


though  not  exactly,  by  measurements  to  the  nearest  known 
corners  north  and  south,  or  east  and  west,  as  the  case  may 
require,  by  a  proportionate  measurement.53 

§  352.  Restoration  of  closing  corners. — Great  care  should 
be  exercised  in  identifying  the  known  corners.  This  corner 
should  be  restored  by  measuring  from  the  nearest  quarter-sec- 
tion, section,  or  township  corner  east  or  west,  as  the  case  may 
be,  to  the  "next  preceding  or  succeeding  corner  in  the  order  of 
original  establishment,  and  re-establish  the  missing  closing 
corner  by  proportionate  measurement."  The  surveyor  should 

53R.  L.  C.  54. 


§353  SURVEYING   AND   BOUNDARIES  378 

remeasure  the  line  upon  which  the  closing  corner  was  originally 
planted  in  order  to  check  up  the  new  location.54 

§  353.  Restoration  of  interior  section  corners. — It  will  be 
readily  seen  that  this  class  of  corners  should  be  restored  in  the 
same  manner  as  corners  common  to  four  townships.  In  the 
event  that  a  number  of  corners  on  all  sides  of  the  one  sought 
to  be  restored  are  lost,  the  whole  distance  must  be  remeasured 
between  the  nearest  known  corners,  both  north  and  south,  and 
east  and  west,  and  the  new  corner  established  by  proportionate 
measurement.  A  measurement  in  one  direction  will  not  suf- 
fice but  the  surveyor  must  measure  in  both  directions,  and  on 
both  sides  of  the  missing  corner.  Figs.  87-110.  Surveyors 
of  much  experience  know  that  there  were  many  errors  in 
original  surveys  and  that  the  line  connecting  two  section  cor- 
ners, which  should  be  straight,  is  sometimes  broken  or  curved. 
Line-trees  will  aid  the  surveyor  in  such  cases,  and,  in  fact, 
should  always  be  regarded  as  the  highest  kind  of  evidence  of 
where  the  original  line  was  run.  The  surveyor  should  be 
certain  of  the  identification  of  the  line-trees  or  other  natural 
features.  In  places  when  the  original  natural  features  have 
been  destroyed  or  never  did  exist,  the  "line  connecting  the 
known  corners  should  be  run  straight  from  corner  to  cor- 
ner/'55 

§  354.  Restoration  of  quarter-section  corners  on  township 
boundaries. — It  will  be  noted  that  only  one  set  of  quarter-sec- 
tion corners  were  established  on  township  lines.  In  the  event 
double  section  corners  are  found,  it  will  be  considered  generally 
that  the  quarter-section  corner  stands  midway  between  the 
two  section  corners  of  the  intended  section  and  should  be  so 
placed.  The  surveyor  will,  however,  exercise  great  caution 
and  not  mistake  the  section  corners  belonging  to  one  town- 
ship for  another  township.  After  the  proper  corners  have 

B4R.  L.  C.  55;  ante  §§  341-3. 
MR.  L.  C.  56. 


379  RESTORATION    OF   LOST    CORNERS  §    356 

been  determined  and  the  line  connecting  them  run  and  meas- 
ured, the  surveyor  will  determine  the  location  of  the  lost  cor- 
ner, in  accordance  with  the  field-notes  by  proportionate  meas- 
urement between  the  proper  section  corners.56  In  those  cases 
where  there  are  double  sets  of  section  corners  on  township 
and  range  lines  and  it  is  desired  to  establish  quarter-section 
corners  south  of  the  township  or  east  of  the  range  line,  such 
quarter  corner  should  be  so  placed  as  "to  suit  the  calculations 
of  areas  of  the  quarter-sections  adjoining  the  township  boun- 
daries" as  found  in  the  official  plat.  Proportionate  measure- 
ments will  be  used  where  the  new  measurements  differ  from 
the  original.57 

§  355.  Restoration  of  quarter-section  corners  on  closing 
section  lines  between  fractional  sections. — These  corners  form 
a  distinct  class  by  themselves  and  the  surveyor  should  not 
confuse  them  with  other  quarter-section  corners.  Such  cor- 
ners must  be  restored  by  proportional  measurement  of  the  en- 
tire fractional  section  line.  The  corner  will  be  established  40 
chains  government  measure  from  the  section  corner  and  not 
40  chains  present  or  new  measure.  The  excess  or  deficiency 
must  be  divided  between  the  different  parts  of  the  whole  line 
so  as  to  give  each  part  its  due  portion.  The  section  corner 
from  which  the  start  was  made  should  be  connected  by  a 
straight  line  with  the  corner  closed  upon,  unless  it  should 
develop  that  the  section  line  is  either  a  broken  or  curved  line. 
In  that  event,  the  work  should  be  checked  up,  and,  if  the 
original  line  can  be  found  at  the  place  where  the  lost  corner 
should  be  located,  the  corner  must  be  restored  on  such  line  at 
a  proportional  distance.58 

§  356.  Restoration  of  interior  quarter-section  corners. — 
It  will  be  found  that  in  some  of  the  older  surveys  these  corners 
were  placed  at  different  distances.  In  all  such  cases,  the  field 

56R.  L.  C.  57-  58R.  L.  C.  59. 

"R.  L.  C.  58. 


§    357  SURVEYING   AND   BOUNDARIES  380 

notes  must  be  the  surveyor's  guide  and  the  quarter-section 
corner  should  be  restored  at  a  proportionate  distance  from  the 
two  section  corners.  In  the  later  surveys  those  corners  are 
placed  equidistant  between  the  two  section  corners,  and  should 
be  restored  by  placing  the  missing  corner  on  a  direct  line  be- 
tween the  section  corners  and  equidistant  therefrom.  The  re- 
marks heretofore  made  relative  to  the  true  location  of  such 
lines  and  to  give  heed  to  line-trees  and  other  natural  objects 
noted  in  the  record  of  the  original  survey  are  applicable  here.59 
It  will  be  noted  that  in  some  of  the  southern  states  it  was  the 
custom  in  early  days  to  establish  "half-mile"  posts  at  a  dis- 
tance of  40  chains  from  the  point  from  which  the  section  line 
was  initiated  and  at  the  same  time  inserting  in  the  notes  at 
the  midway  point  "1/4  sec.  cor.,"  and  without  indication  in 
such  notes  that  any  other  corner  than  the  "half-mile"  comer 
was  set.  In  such  cases  it  will  be  presumed  that  the  1/4  sec. 
cor.  was  "called  for"  at  that  point.  Owing  to  confusion,  this 
practice  has  been  discontinued.60  It  should  be  remembered 
that  these  "half-mile"  posts  are  not  to  be  regarded  in  the  sub- 
division of  a  section  except  where  they  happen  to  occupy  a 
midway  point  on  the  true  line.  In  such  case,  the  last  quarter- 
section  corner  will  be  restored  on  the  true  line,  midway  be- 
tween the  section  corners.61 

§  357.  Where  double  corners  were  originally  established, 
one  of  which  is  known  to  restore  the  other. — It  will  be  noted 
that  the  corners  established  when  the  township  lines  were  run, 
belong  to  the  sections  lying  north  and  west  thereof.  The  sur- 
veyor should  first  determine  to  which  sections  the  known 
corner  belongs.  He  will  readily  devise  means  for  determining 
that  fact  from  data  in  the  notes.  After  such  determination, 
the  lost  corner  may  be  restored  in  line  from  the  known  corner, 
at  the  distance  given  in  the  notes,  by  proportionate  measure- 

"R.  L.  C.  60.  eiR.  L.  C.  61. 

«°R.  L.  C.  61. 


381  RESTORATION   OF  LOST   CORNERS  §    359 

ment.  It  should  be  tested  by  a  retracement  to  the  opposite  cor- 
responding corner  of  the  section  to  which  the  lost  corner  be- 
longs. It  will  be  remembered  that  ordinarily  double  corners 
are  but  a  few  chains  apart,  and  the  distance  between  them 
can  be  readily  laid  off.  This  is  considered  the  better  way  of 
restoring  the  lost  corner.  The  line  measured  would  be  from 
one  corner  of  the  section  to  the  known  double  corner  and  the 
lost  corner  fixed  by  a  proportionate  measurement  on  the  town- 
ship line.62 

§  35&  Where  double  corners  were  originally  established 
and  both  are  missing — To  restore  the  one  established  when 
the  township  line  was  run. — In  such  cases  the  surveyor  should 
connect  the  nearest  known  corners  by  a  right  line.  He  should 
be  careful  and  make  certain  that  he  has  the  section  and  not 
the  closing  corner  to  which  measurements  are  made.  The 
lost  corner  should  be  restored  on  the  line  at  a  proportionate 
distance  from  the  known  corners.  Of  course,  the  corner  thus 
restored  will  be  common  to  two  sections  either  north  or  west 
of  the  township  line.  The  surveyor  should  test  the  accuracy 
of  his  work  by  retracing  the  section  north  or  west,  as  the  case 
may  be,  and  thus  check  up  the  restored  corner.  Measurements 
to  objects  on  the  line,  mentioned  in  the  notes,  will  be  of  great 
importance  in  checking  up  restoration  work.63 

§  359.  Where  double  corners  were  originally  established, 
and  both  are  lost — To  restore  the  one  established  when  the 
township  was  subdivided.— The  surveyor  will  first  carefully 
retrace  and  mark  the  township  line.  He  will  then  retrace  the 
line  between  the  two  sections  south  or  east  of  the  township  line 
until  it  intersects  the  township  line,  setting  a  temporary  post 
at  the  point  of  intersection.  Verify  the  correctness  of  the 
location  of  the  temporary  corner  by  a  measurement  to  known 
objects  on  the  township  line.  Make  the  necessary  corrections. 

62R.   L.    C.   62. 

63R.  L.  C.  63. 


§    360  SURVEYING  AND  BOUNDARIES  382 

If  unusual  error  be  found  in  one  of  the  tested  lines,  the  sur- 
veyor should  follow  the  advices  laid  down  in  "Exceptional 
Cases,"  in  this  chapter.64 

§  360.  Where  triple  corners  were  originally  established  on 
range  lines,  one  or  two  of  which  have  become  obliterated — 
To  restore  either  of  them. — In  many  respects  this  is  difficult 
and  unsatisfactory.  In  the  older  surveys  much  of  the  work 
was  carelessly  done  and  erroneous.  Meager  notes  only  were 
frequently  made  and  the  surveyor  will  often  find  himself  with 
little  data  to  work  from.  Here  he  should  press  into  service  all 
of  his  originality.  In  the  problem  under  consideration,  it  will 
be  noted  that  only  two  corners  were  originally  established  as 
corners  of  sections,  "those  established  on  the  range  line  not 
corresponding  with  the  subdivisional  survey  east  or  west  of 
said  range  line."  The  surveyor  will  first  identify  the  known 
corner  or  corners.  He  will  then  restore  the  lost  corner  or  cor- 
ners in  line  north  or  south,  according  to  the  field-note  dis- 
tances in  the  manner  indicated  for  restoring  double  corners. 
He  will  test  his  work  as  directed  in  this  chapter.  But  should 
the  distances  between  the  triple  corners  be  not  given  in  the 
notes,  as  is  frequently  the  case,  the  surveyor  should  carefully 
retrace  and  mark  the  range  line.  Then  the  section  lines  clos- 
ing upon  the  corners  should  be  carefully  retraced  according  to 
the  notes.  The  corners  should  be  restored  in  the  same  way 
as  is  provided  for  restoring  double  corners.  All  data  must 
be  examined  and  all  natural  features  regarded  in  retracing 
these  lines.  The  work  can  only  be  checked  by  a  recalculation 
based  on  the  areas  noted  on  the  plat.  As  these  were  frequently 
inaccurate  in  old  surveys,  the  work  at  best  is  not  very  satisfac- 
tory.65 

§  361.  Where  triple  corners  were  originally  established  on 
range  lines,  all  of  which  are  missing — To  restore  same. — First, 

e*R.  L.  C.  64;  ante  §  343- 
L.  C.  65. 


383  RESTORATION   OF   LOST   CORNERS  §    362 

restore  the  corner  originally  established  when  the  range  line 
was  run  in  the  manner  heretofore  directed,  for  restoring  sec- 
tion and  quarter-section  corners  on  township  lines.  As  will 
be  recalled,  this  is  done  by  remeasuring  between  nearest  known 
corners  on  township  line  and  fixing  the  point  on  said  line  by 
proportionate  measurement.  The  other  two  corners  will  be 
restored  in  the  manner  heretofore  laid  down  for  re-establish- 
ing double  corners.66 

§  362.  Re-establishing  meander  corners. — These  corners 
are  in  a  class  practically  by  themselves.  In  preparation  for 
this  work,  the  surveyor  should  carefully  rechain  three  or  four 
of  the  section  lines  between  known  corners  of  the  township 
within  which  the  lost  corner  is  to  be  relocated.  By  this  means 
he  will  be  able  to  establish  the  proportionate  measurement  to 
be  used.  He  can  thus  test  the  original  work  and  by  striking 
a  mean  in  the  matter,  can  determine  the  length  of  the  section 
line  to  the  lost  meander  corner.  At  the  same  time,  he  should 
take  the  bearings  of  the  same  known  lines  and  by  taking  a 
mean  between  all  of  them,  can  arrive  at  the  course  of  the  re- 
quired line  approximately  correct.  If  the  original  surveyor 
reported  meridional  lines  as  running  due  north  and  he  finds 
them  to  run  N.  i°  20'  E.  this  course  should  be  considered  in 
restoring  extinct  north  line  to  meander  corner.67  These  pre- 
liminaries should  in  no  case  be  omitted.  They  give  the  only 
data  by  which  the  section  line  can  be  run  and  proportionate 
measurements  made.  The  lost  meander  corner  will  be 
planted  on  the  restored  line  at  a  point  determined  by  a  pro- 
portionate measurement,  as  theretofore  found,  from  the  near- 
est known  corner  on  such  line.  The  retracing  of  the  three  or 
four  lines  furnishes  a  "measure  stick,"  as  may  be  said,  to  fix 
the  length  of  the  restored  line  to  the  meander  corner.  It  will 
frequently  be  found  that  the  original  meander  corner  has  been 

66R.  L.  C.  66. 
67R.  L.  C.  67. 


§    3^3  SURVEYING   AND   BOUNDARIES  384 

washed  away  and  its  present  location  would  be  covered  with 
water.  This,  however,  is  unimportant,  as  the  riparian  owner 
usually  takes  to  either  high  or  low-water  mark.  In  those  states 
which  hold  that  dried  up  beds  of  lakes  belong  to  the  state,  the 
meander  corner  would  mark  the  boundary.68  Where  the 
United  States  has  disposed  of  its  lands  bordering  on  lakes  and 
streams,  it  does  not  claim  any  interest  therein  or  between  the 
meander  line  and  such  waters  unless  there  be  an  explicit 
reservation  or  unless  there  be  some  fraud  or  mistake.  The 
meander  lines  are  not  regarded  as  boundary  lines.  However, 
the  preservation  of  the  meander  corner  is  important  as  marking 
the  position  of  the  section  line.  The  matter  of  the  division  of 
accretion  between  adjoining  owners  is  a  subject  of  state  regula- 
tion, as  we  have  seen.69 

§  363.  Restoration  of  fractional  section  lines. — Where  lo- 
cal surveyors  are  required  to  restore  fractional  section  lines 
closing  on  national  parks,  reservations,  military  reserves,  or 
private  grants,  they  will  proceed  in  the  manner  indicated  in  the 
preceding  section.  The  corners  on  these  lines  will,  however, 
mark  the  boundary  line,  and  are  not  meander  corners.  It  will 
be  found  in  some  cases  that  corners  have  been  moved  from 
their  original  location,  either  by  accident  or  design.  All  such 
corners  should  be  restored  to  their  original  locations.  In  the 
absence  of  all  means  of  identification  of  the  position  of  the 
original  corner,  the  work  would  not  be  very  acceptable  to  land 
owners  whose  boundaries  are  affected  by  such  corners.  As  the 
United  States  has  no  further  authority  in  such  matters,  the 
location  of  such  lines  should  be  made  under  the  order  of  a 
court  of  competent  jurisdiction  of  the  state  where  situated.70 

§  364.  Records. — The  commissioner  of  the  general  land 
office  has  transferred  the  original  field-notes  and  records  of 
public  surveys  under  authority  of  Congress  to  the  following 

68R.  L.  C.  68-9.  7°R-  L-  C.  71. 

e»R.  L.  C.  70;  ante  ch.  XIV. 


385  RESTORATION   OF  LOST   CORNERS  §    365 

named  states.  Rev.  St.  2218,  2219,  2220.  Application  may 
be  made  to  the  officials  therein  named  for  copies.71  In  other 
public-land  states  the  records  are  retained  in  the  office  of  the 
surveyor-general  of  the  United  States. 

Alabama:    Secretary  of  State,  Montgomery. 

Arkansas :    Commissioner  of  State  Lands,  Little  Rock. 

Florida:     Commissioner  of  Agriculture,  Tallahassee. 

Illinois :    Auditor  of  State,  Springfield. 

Indiana :    Auditor  of  State,  Indianapolis. 

Iowa :    Secretary  of  State,  Des  Moines. 

Kansas:  Auditor  of  State  and  Register  of  State  Lands, 
Topeka. 

Louisiana:  (after  June  30,  1909)  State  Officers. 

Michigan :    Public  Domain  Commissioner,  Lansing. 

Minnesota:    Secretary  of  State,  St.  Paul. 

Mississippi :    Commissioner  of  State  Lands,  Jackson. 

Missouri :    Secretary  of  State,  Jefferson  City. 

Nebraska :  Commissioner  of  Public  Lands  and  Buildings, 
Lincoln. 

North  Dakota:    State  Engineer,  Bismark. 

Ohio :    Auditor  of  State,  Columbus. 

Wisconsin :     Commissioners  of  Public  Lands,  Madison. 

§  365.  Subdivision  of  sections. — It  must  be  remembered 
that  the  rules  for  the  subdivision  of  sections  are  based  upon 
the  laws  and  regulations  governing  the  survey  of  the  public 
lands.  A  state  statute  which  controverts  those  statutes  and 
rules  would  be  void  and  should  not  be  followed.  If  questions 
arise  which  do  not  appear  to  be  covered  by  these  rules  and 
can  not  be  solved  by  a  reference  to  the  instructions  found  in 
this  book,  the  surveyor  should  write  the  commissioner  of  the 
land  office.  Such  inquiry  should  contain  a  particular  descrip- 
tion of  the  land,  giving  section,  town  and  range ;  also  a  dia- 

L.  C.  72. 


§    366  SURVEYING  AND  BOUNDARIES  386 

gram  showing  conditions  existing.  The  distances  should  be 
given  in  chains  and  links  and  not  in  feet.72  Before  attempting 
the  subdivision  of  a  section,  the  surveyor  should  determine 
the  actual  boundaries  theredf.  All  of  the  section  and  quarter- 
section  corners  must  be  determined.  If  lost  or  obliterated, 
they  should  be  restored  as  heretofore  directed.  The  surveyor 
should  never  allow  himself  to  be  coaxed  into  making  a  survey 
by  a  reference  to  one  or  two  corners  only,  as  it  is  wholly  un- 
warranted. The  surveyor  should  first  reestablish  the  obliter- 
ated corners;  secondly,  he  will  run  the  quarter  lines;  thirdly, 
he  will  run  smaller  tracts  according  to  the  rules  promulgated 
for  making  an  equitable  division  as  found  herein.73 

§  366.  Subdivision  of  sections  into  quarters. — The  sur- 
veyor should  run  straight  lines  from  the  established  quarter- 
section  corners,  to  the  opposite  corresponding  corners.  The 
point  of  intersection  of  such  lines  will  be  the  center  of  the 
section — the  legal  center.74  Upon  the  lines  closing  upon  the 
north  or  west  sides  of  a  township,  it  ,must  be  remembered  the 
quarter  corners  are  set  at  exactly  40  chains,  original  measure, 
to  the  north  or  west  of  the  last  interior  section  corner.  The 
excess  or  deficiency  thereby  being  thrown  into  the  half  mile 
bordering  on  the  township  or  range  line,  as  the  case  may  be.75 

Where  there  are  double  section  corners  on  township  or  range 
lines,  the  quarter-section  corner  south  of  the  town  line  and 
east  of  the  range  line  were  not  originally  established.  In  sub- 
dividing such  sections,  the  quarter  corners  should  be  placed  at 
a  point  "to  suit  the  calculations  of  the  areas  of  the  quarter- 
sections  adjoining  the  township  boundaries/'  as  shown  on  the 
official  plat.  Proportionate  measurements  should  be  adopted 
"where  the  new  measurements  of  the  north  or  west  boundaries 
of  the  section  differ  from  the  original  measurements."76 

"R.  L.  C.  73-  75R.  L.  C.  76. 

™R.  L.  C.  74.  T6R.  L.  C.  77. 

™R.  L.  C.  75- 


387  RESTORATION   OF   LOST    CORNERS  §    369 

§  367.  Subdivision  of  fractional  sections. — It  will  be  noted 
that  in  many  fractional  sections  opposite  corresponding  cor- 
ners were  not  or  could  not  be  established.  The  subdivision 
lines  should  be  determined  by  "running  from  the  established 
corners  due  north,  south,  east,  or  west,  lines,  as  the  case  may 
be,  to  the  water  course,  Indian  boundary  line,  or  other  boun- 
dary of  such  fractional  section."77  This  is  accomplished  by 
running  a  mean  between  the  north  and  south  boundary,  or 
east  and  west  boundary  of  the  section,  as  the  case  may  be.78 
If  there  be  no  opposite  section  line,  the  subdivision  line  should 
be  run  parallel  to  the  east,  south,  west,  or  north  boundary  of 
the  section,  as  "conditions  may  require/'79 

§  368.  Subdivision  of  quarter-sections  into  quarter- 
quarters. — The  surveyor  will  first  establish  all  of  the  quarter- 
quarter  corners  at  points  midway  between  the  section  and 
quarter-section  corners,  and  between  quarter  corners,  and 
the  center  of  the  section,  "except  on  the  last  half-mile  of  the 
lines  closing  on  the  north  or  west  boundaries  of  a  township 
where  they  should  be  placed  at  20  chains,  proportionate  meas- 
urement, to  the  north  or  west  of  the  quarter-section  corner."80 
Having  established  the  quarter-quarter  sectioi^corner  as  di- 
rected herein,  the  surveyor  should  run  the  subdivision  lines 
straight  between  the  opposite  corresponding  quarter-quarter 
section  corners.  The  intersection  of  such  lines  will  be  the 
center  of  the  quarter-quarter  section  and  the  corner  common 
to  the  four  quarter-quarter  sections.81 

§  369.  Subdivision  of  fractional  quarter-sections. — From 
what  has  already  been  said,  it  will  be  seen  that  subdivision 
lines  of  fractional  quarter-sections  will  be  run  from  the  prop- 
erly established  quarter-quarter  section  corners  with  courses 
to  be  determined  by  conditions.  This  course  should  be  run 

"R.  L.  C.  78;    ante    §    131.  80R.  L.  C  80;  ante  §§   135-7. 

78R.  L.  C.  79;  ante  §  134.  81R-  L-  C.  81;  ante  I  135. 

79R.  L.  C.  79;  ante  §  31-4. 


§    37°  SURVEYING   AND   BOUNDARIES  388 

due  north  or  south,  or  east  or  west,  as  the  case  may  be,  to  the 
lake,  reservation,  or  water  course,  or,  in  some  cases,  as  we 
have  seen,  parallel  to  the  east,  south,  west,  or  north  boundary 
of  the  quarter-section  according  to  conditions.82 

§  37°-  Proportionate  measurement. — "By  proportionate 
measurement,"  the  instructions  continue,  "of  a  part  of  a  line 
is  meant  a  measurement  having  the  same  ratio  to  that  recorded 
in  the  original  field-notes  for  that  portion  as  the  length  of  the 
whole  line  by  actual  measurement  bears  to  its  length  as  given 
in  the  record."  It  is  seldom  that  the  old  and  new  measures 
agree.  The  error  may  be  caused  by  a  chain  used,  of  erroneous 
length,  by  neglecting  to  set  the  pin  perpendicular ;  by  failure  to 
level  the  chain,  by  erroneous  entry  or  transcribing  of  notes. 
The  surveyor  should  avoid  all  of  these  in  retracement  of  the 
original  survey.  It  was  the  practice  in  former  days  to  "adjust 
the  chain"  to  suit  the  original  measure,  but  in  recent  times  the 
method  of  proportionate  measurement  is  used  for  computing 
the  surplus  or  shortage.  This  method  gives  more  reliable 
results.88 

For  Example :  The  field-notes  of  the  original  survey  of  the 
line  from  the  quarter-section  corner  on  the  west  side  of  Sec. 
2,  T.  24  N.,  R.  14  E.,  Wisconsin,  to  the  north  line  of  the 
township  show  the  distance  to  be  45.40  chains.  The  county 
surveyor's  measure  gives  the  distance  42.90  chains.  It  is 
required  to  find  the  distance  the  quarter-quarter  section  cor- 
ner should  be  located  north  of  the  quarter-section  corner.  The 
correct  proportion  would  be  as  follows:  As  45.40  chains  is 
to  42.90  chains,  so  is  20  chains  to  X.  By  computation  X  is 
found  to  be  18.90  chains.  That  would  be  the  distance  recent 
measure  of  the  quarter-quarter  corner  north  of  the  quarter 
corner.  This,  it  will  be  noted,  is  the  equivalent  of  20  chains 
government  measure.  Thus  the  discrepancies  between  original 

82R.  L.  C.  82;  ante  §  137. 
83R.  L.  C.  83. 


389  RESTORATION   OF   LOST    CORNERS  §    372 

and  new  measurements  are  distributed  to  every  part  of  the 
line.84 

§  371.  Equitable  part  of  surplus  apportioned  to  entire 
line. — It  must  not  be  forgotten  that  a  survey  must  be  initiated 
at  some  well  defined  and  unquestioned  starting  point  on  the 
original  survey.  So,  too,  it  must  terminate  at  some  identified 
point  in  that  survey.  Intermediate  corners  will  be  placed 
along  the  line  to  be  retraced  by  proportionate  measure.  For 
instance,  should  the  east  side  of  a  section  be  originally  re- 
ported to  be  80  chains,  and  the  late  measurement  be  found  to 
be  82  chains,  then  the  quarter  corner  planted  at  40  chains  by 
the  government  survey  would  be  placed  at  41  chains,  recent 
survey.  The  proper  proportion  would  be  as  follows :  80  :  82 
: :  40  :  x85  Thus  every  part  of  the  line  is  given  its  equitable 
part  of  any  surplusage  and  must  bear  its  part  of  any  deficiency. 

The  reader  will  find  it  advantageous  to  peruse  other  chap- 
ters in  this  work  while  studying  this  one.  Also  to  make  a 
study  of  the  diagrams  used  as  illustrations.86 

§  372.  Distinction  between  corner  and  monument. — While 
the  terms  corner  and  monument  are  generally  used  inter- 
changeably, though,  in  considering  the  restoration  of  lost  cor- 
ners, there  is  clearly  a  distinction  which  should  be  noted. 
Strictly  speaking,  the  term  "corner"  is  used  to  denote  a  point 
determined  by  surveying  or  other  operation.  The  term 
"monument"  should  be  used  in  speaking  of  the  evidence  of 
the  location  of  that  point — the  corner.  A  monument  may  be 
entirely  obliterated,  and  yet  the  location  of  the  corner  may  be 
known.  Still  the  monument  and  its  accessories  are  the  very 
highest  evidence  of  the  correct  location  of  the  corner.  The 
surveyor  can  not  place  too  much  importance  on  a  search  for 
the  original  monument  and  accessories  and  he  should  find 
them  if  to  be  found  before  deciding  the  corner  to  be  a  lost  one. 

L.  C.  84-5.  86Ante  ch.  VII. 

.  L.  C.  86. 


§    373  SURVEYING   AND   BOUNDARIES  3QO 

§  373-  Monuments  and  accessories. — Strictly  speaking,  the 
accessories  are  a  part  of  the  monument.  Where  a  monument 
is  obliterated,  the  accessories  furnish  the  highest  evidence  of 
the  location  of  the  original  monument,  and,  therefore,  such 
accessories  are  of  prime  importance  in  relocating  such  obliter- 
ated monument.  The  term,  "accessories,"  includes  all  witness- 
trees,  line-trees,  mounds,  pits,  streams,  bodies  of  water,  ledges, 
rocks,  or  other  natural  features  to  which  the  distance  from 
the  corner  or  monument  are  known.  These  natural  features 
furnish  unmistakable  evidence  of  the  location  of  the  monument, 
the  nearer  to  the  required  point,  the  stronger  the  evidence. 

§  374.  An  existent  or  known  corner. — "An  existent  or 
known  corner"  is  one  which  can  be  identified,  either  by  the 
known  monument  of  that  corner,  or  by  establishing  that  monu- 
ment from  the  accessories  by  a  reference  to  the  notes  of  the 
original  survey.  In  fact,  the  accessories  and  notes  furnish 
corroborating  evidence  of  the  location  of  the  monument  of  the 
highest  degree.  Hence,  in  all  original  surveys  and  in  resur- 
veys,  full  notes  should  be  taken  of  all  accessories  established, 
of  the  bearings  of  lines  and  randoms,  and  of  the  methods  used 
in  establishing  corners,  running  or  retracing  lines. 

No  corner  should  be  regarded  as  lost  until  every  means  has 
been  exhausted  in  an  attempt  to  locate  it,  either  from  the  orig- 
inal monument  or  from  the  accessories.  Accessories  may  ap- 
pear, on  casual  examination,  to  be  destroyed,  but  on  a  careful, 
systematic  search,  evidence  of  their  location  will  be  found. 
Where  search  for  monuments  or  accessories  can  be  made  from 
a  single  known  point,  the  problem  is  materially  simplified,  and 
directly  other  points  may  become  known  and  together  furnish 
unmistakable  evidence  of  the  location  of  the  corner. 

§  375.  Character  of  original  monuments  and  accessories. — 
In  his  effort  to  identify  the  original  monument,  the  surveyor 
will  give  intelligent  investigation  to  the  character  of  that  monu- 
ment and  the  accessories.  It  is  assumed  that  the  field-notes 


391  RESTORATION    OF   LOST    CORNERS  §    376 

give  a  detailed  description  of  such  monument  and  accessories 
and  that  the  surveyor  has  a  copy  of  such  notes.  He  should 
regard  the  size,  the  material,  local  conditions,  deteriorations, 
the  lapse  of  time,  the  soil  and  any  other  features  or  conditions 
which  may  have  a  bearing  on  the  subject.  If  there  were  wit- 
ness trees,  which  were  blazed  and  marked,  these  will  be  identi- 
fied by  carefully  cutting  down  to  the  original  blaze  and  com- 
paring the  markings  with  the  notes,  being  observant  of  the 
years  of  growth  of  the  tree  since  the  original  markings.  The 
size  of  the  tree  and  the  kind  of  timber  should  not  widely  vary 
from  the  notes.  So,  also,  of  the  monument  and  its  accessories 
generally. 

It  may  happen  that  there  are  material  disagreements  between 
some  of  the  accessories.  There  may  have  been  an  error  of 
reading  or  entering  in  the  notes,  the  bearing,  the  distance  or 
the  kind  of  accessory.  In  that  event,  the  surveyor  should 
eliminate  some  of  the  calls  in  order  to  harmonize  the  greater 
number  and  thus  establish  the  monument  as  originally  located. 
In  this  process,  the  surveyor  will  be  required  to  use  his  best 
judgment,  and  corroborate  the  evidence  which  seems  the  most 
likely. 

The  1919  Manual,  Sec.  354,  recommends  the  following 
points  for  consideration  of  the  surveyor  in  such  elimination : 

(a)  "The  character  and  dimensions  of  the  monument  in 
evidence  should  not  be  widely  different  from  the  record ; 

(b)  "The  markings  in  evidence  should  not  be  inconsistent 
with  the  record ;  and, 

(c)  "The  nature  of  the  accessories  in  evidence,  including 
size,  positions,  and  markings,  should  not  be  greatly  at  variance 
with  the  record." 

§  376.  What  is  a  lost  corner? — A  corner  should  not  be  re- 
garded as  lost  until  all  means  of  fixing  its  original  location 
have  been  exhausted.  It  is  so  much  more  satisfactory  to  so 


§    3/6  SURVEYING   AND   BOUNDARIES  3Q2 

locate  the  corner  than  regard  it  as  "lost"  and  locate  by  "pro- 
portionate" measurement. 

If  the  original  corner  has  at  some  time  been  relocated  by  a 
surveyor,  who  made  a  record  of  such  location,  and  his  notes 
and  the  accessories  established  by  him  are  to  be  found  and 
they  are  unimpeached,  it  will  be  regarded  as  the  very  highest 
degree  of  evidence  in  the  absence  of  finding  the  original  monu- 
ment or  the  accessories  thereof. 

Another  high  degree  of  evidence  of  the  location  of  the  orig- 
inal corner  or  monument  thereto  is  the  evidence  of  old  resi- 
dents in  the  immediate  vicinity  of  the  corner  who  have  per- 
sonal recollections  of  the  location  of  the  original  monument 
and  who  are  able  to  give  positive  evidence  of  the  exact  loca- 
tion of  such  monument. 

The  declarations  of  surveyors  and  others,  since  deceased, 
are  exceedingly  valuable  where  clearly  proven  and  are  unim- 
peached.87 The  surveyor  should  use  great  care  to  establish 
the  good  faith  of  both  the  record  testimony  and  the  evidence 
of  old  residents.  He  should  not  too  hastily  accept  or  reject 
such  evidence,  but  should  carefully  consider  it  in  all  its  bear- 
ings. 

Boundary  disputes  and  the  claims  of  the  disputants  as  to 
location  of  the  original  corner  should  be  carefully  considered. 
The  surveyor  will  follow  up  all  such  claims  and  determine 
what,  if  any,  merit  there  be  in  the  claim.  What  we  have  said 
with  reference  to  the  testimony  of  old  residents  and  surveyors 
as  applied  to  the  original  monument  will  apply  to  accessories. 
All  such  testimony  should  be  severely  tested.  It  should  be 
compared  with  known  objects  or  corners  and  with  natural 
features,  such  as  line-trees,  streams,  ledges,  rocks,  etc. 

The  commissioner  of  the  land  office  has  recently  defined  a 
"lost  corner"  as  follows :  "A  lost  corner  is  a  point  of  a  survey 
whose  position  can  not  be  determined,  beyond  reasonable  doubt, 

87Post  ch.  16. 


393  I*-'  RESTORATION   OF  LOST   CORNERS  §    37$ 

either  from  original  traces  or  from  other  reliable  evidence 
relating  to  the  position  of  the  original  monument,  and  whose 
restoration  on  the  earth's  surface  can  be  accomplished  only 
by  means  of  a  suitable  surveying  process  with  reference  to 
interdependent  existent  corners."88 

§  377.  Proportional  measurement. — A  proportional  meas- 
urement is  defined  by  the  1919  Manual  (364)  to  be  "one  re- 
sulting in  concordant  relation  between  all  parts  of  an  original 
record  length  of  a  line  and  the  new  distances  given  to  the 
several  parts  as  determined  by  the  remeasurement,  in  such 
manner  that  the  new  distance  given  to  any  part  of  a  line  shall 
bear  the  same  relation  to  the  original  record  length  of  that 
part  of  the  line  as  the  new  measurement  of  the  whole  line 
bears  to  the  original  record  length  of  said  line."  Practically 
this  amounts  to  a  distribution  of  the  excess  or  deficiency  of  a 
given  line,  as  found  by  recent  measurement,  over  the  whole 
line. 

§  378.  Single  proportionate  measurement. — "The  term 
single  proportionate  measurement,"  says  the  1919  Manual 
(365),  "is  applied  to  a  new  measurement  made  on  a  single  line 
to  determine  the  position  thereon  for  the  purpose  of  restoring 
a  lost  corner,  for  example,  a  quarter-section  corner  on  line 
between  two  original  section  corners."  Thus  to  restore  a  lost 
quarter-section  corner  between  two  known  section  corners,  the 
surveyor  is  required  to  run  a  random  line  between  the  two 
section  corners,  measuring  the  distance  and,  at  the  distance  of 
40  chains,  set  a  temporary  post  on  the  random.  He  will  then 
continue  toward  the  other  section  corner,  noting  the  distance 
and  the  falling  at  that  corner.  He  will  then  correct  back  and 
set  on  to  the  true  line,  establishing  the  missing  quarter-section 
corner  at  a  proportionate  distance  on  a  direct  line  between 
the  two  section  corners.  All  interior  quarter-section  corners 
and  all  section  and  quarter-section  corners  on  township  lines, 

88Manual  1919,  §  360. 


§    379  SURVEYING  AND  BOUNDARIES  394 

and  also  section  and  quarter-section  corners  on  standard 
parallels  are  generally  re-established  by  the  single  proportion- 
ate measurement.  In  fact  "The  method  of  single  proportion- 
ate measurement  is  generally  applicable  to  the  restoration  of 
lost  corners  on  standard  parallels  and  other  lines  established 
with  reference  to  definite  alinement  in  one  direction  only.  In- 
termediate corners  on  township  exteriors  and  other  controlling 
boundary  lines  are  to  be  included  in  this  class."89  Hence  it 
will  not  do  to  say  that  all  section  corners  are  established  by 
what  is  termed  the  "double  proportionate  measurement."  If 
the  lost  section  corner  is  on  a  "controlling  line"  it  must  be 
re-established  by  the  single  proportionate  measurement,  and 
with  good  reason,  for  it  was  originally  so  established. 

§  379'  Double  proportionate  measurement. — "The  term, 
'double  proportionate  measurement'  is  employed  to  signify 
new  measurements  made  between  four  original  corners  on 
intersecting  meridional  and  latitudinal  lines  for  the  purpose  of 
fixing  by  relation  to  both  lines  the  position  of  a  lost  corner 
for  example,  a  corner  common  to  four  sections  or  four  town- 
ships."90 The  reason  why  the  double  proportionate  measure- 
ment is  made  in  such  cases  is  because  the  corner  was  originally 
located  with  reference  to  distances  in  both  directions.  The  sur- 
veyor will  generally  use  the  method  of  double  proportionate 
measurement  in  relocating  a  lost  corner  common  to  four  town- 
ships or  a  lost  interior  corner  common  to  four  sections.  The 
theory  is  that  monuments  north  and  south  should  control  the 
latitudinal  position  of  a  lost  corner,  and  monuments  east  and 
west  should  control  the  longitudinal  position  of  such  corner. 
Thus  the  influence  of  nearest  known  corners  is  exerted  on  the 
relocation  of  a  lost  corner  in  its  proper  place. 

§  380.  To  re-establish  lost  corner  common  to  four  town- 
ships.— As  we  have  seen,  there  are  two  kinds  of  such  cor- 

89Manual  (1919),  372. 
90Manual   (1919),  365. 


395  RESTORATION   OF  LOST   CORNERS  §    380 

tiers.91  The  first  where  the  position  of  the  lost  corner  is  made 
to  depend  on  two  lines  run  at  right  angles  to  each  other,  and 
the  other  where  such  lost  corner  is  on  a  guide  meridian.  In 
the  former  case,  the  corner  was  originally  located  by  measure- 
ments in  both  directions.  In  the  latter,  it  was  located  by  a 
measurement  in  one  direction  only.  To  re-establish  the  former, 
the  surveyor  should  first  run  lines  connecting  the  nearest  iden- 
tified corners  north  and  south  of  such  corner,  placing  a 
temporary  post  at  the  proportional  distance  between  the  near- 
est known  corners.  This  will  fix  the  latitude  of  the  lost 
corner.  The  surveyor  will  next  measure  between  the  nearest 
identified  corners  east  and  west  of  the  lost  corner,  and  by  a 
proportionate  measurement  in  a  similar  manner  plant  a  tem- 
porary post  at  the  proper  point.  This  will  determine  the  de- 
parture of  the  lost  corner.  From  the  first  temporary  post  the 
surveyor  will  run  a  true  east  or  west  line,  as  the  case  may  be, 
and  from  the  second  temporary  post  he  will  run  a  true  north 
or  south  line,  as  the  case  may  be,  and,  at  the  point  of  inter- 
section of  the  two  lines,  he  will  establish  the  lost  corner. 

Let  it  be  assumed  that  the  point  E  in  Fig.  88,  being  a  corner 
common  to  four  townships,  is  a  lost  corner;  that  the  nearest 
identified  corners  on  the  township  lines  are  A,  B,  C  and  D. 
It  is  required  to  restore  such  lost  corner.  The  surveyor  will 
commence  at  D  and  random  toward  B,  measuring  the  dis- 
tance DB.  He  will  plant  a  temporary  post  at  the  correct  pro- 
portional distance,  as  at  H,  Fig.  87.  He  will  then  random 
from  A  toward  C,  measuring  the  distance  AC.  He  will  plant 
a  temporary  post  at  the  correct  proportional  distance,  as  at  I, 
Fig.  87.  He  will  then  run  a  true  west  line  from  the  point  H, 
and  a  true  north  line  from  the  point  I,  and  at  the  point  of  inter- 
section of  these  two  lines  locate  the  lost  township  corner  as  at 
O.92  If  the  lost  corner  be  on  a  guide  meridian  and  orig- 

91Ante  §  350. 
92Manual   (1919),  368. 


SURVEYING  AND  BOUNDARIES 


396 


inally  established  by  a  measurement  in  one  direction  only,  the 
single  proportionate  measurement  will  be  used. 

§  381.    To  restore  corner  common  to  four  townships  where 
the  lines  from  three  directions  only  have  been  established. — 

B 


1 
1 

26         |       25 

I 

1 

30     ;     ^9    ; 

1 

L 

p 

i 
35      i      36 

I 
A                       f 

1 

1 

H                      L, 

1            » 

"               12. 

1  (. 

1 

1 
1 

1 

7  :  a 

1 

•» 

Rq.88 


Referring  to  Figures  87  and  88,  let  it  be  assumed  that  the 
latitudinal  line  EC  had  not  been  established  in  the  original 
survey,  how  is  the  lost  corner  E  to  be  restored?  The  tem- 
porary point  H,  Fig.  87,  will  be  fixed  in  the  same  way  set 
forth  in  the  preceding  section.  The  temporary  point  I  will 


397        -V  RESTORATION   OF   LOST   CORNERS  §    381 

be  fixed  by  taking  the  record  distance  to  the  nearest  identified 
corner  in  the  opposite  direction,  as  at  A.  The  point  O  will  be 
fixed  by  running  the  lines  IO  and  HO  as  in  the  preceding 
section.93  While  this  is  the  rule  prescribed  by  the  commis- 
sioner of  the  general  land  office,  yet  it  would  seem  to  the 
writer  that  it  is  subject  to  criticism,  in  this,  that  to  take  the 
record  distance  without  any  comparison  of  recent  measure- 
ments with  original  measurements  that  it  would  be  very  apt 
to  give  an  erroneous  location.  It  would  seem  that  a  more 
satisfactory  method  would  be  to  measure  on  beyond  A  to 
another  identified  corner  to  the  west  and  then  make  AE  a 
distance  proportional  to  such  entire  distance.  This  would  at 
least  approximate  the  original  measurement  and  we  believe 
that  was  the  intention  of  the  commissioner.  Then,  occasionally 
it  will  be  found  that  the  corner  common  to  four  townships  was 
established  originally  by  measurements  in  two  directions  only. 
To  restore  such  a  corner,  the  Manual  (371)  lays  down  the  rule 
to  fix  the  point  E  by  measurements  in  two  directions  only, 
that  is,  take  the  record  distances.  It  would  seem  to  us  that 
this  is  subject  to  the  same  criticism.  A  more  accurate  method 
would  be  to  take  two  identified  corners  in  each  of  the  two 
directions  and  establish  E  at  a  proportional  distance  as  com- 
pared with  the  original  measurement.  This  would  be  employ- 
ing the  rule  of  a  definite  surplus  or  deficiency.9*  It  is  quite 
probable  that  the  commissioner  so  intended. 

There  is,  however,  no  doubt  about  the  rule  prescribed  by  the 
land  department  in  this  respect.  To  make  certain  of  the  true 
construction  of  the  rule  so  prescribed  by  the  commissioner  the 
author  wrote  the  commissioner,  on  December  ipth  last,  as 
follows : 

03Manual    (1919),  371- 
94Manual   (1919),  382. 


§381  SURVEYING  AND  BOUNDARIES  398 

"Commissioner  of  the  General  Land  Office, 
"Washington,  D.  C. 
"Dear  Sir  :- 

"The  annexed  diagram  represents  a  part  of  four  townships, 
showing  the  corner  common  to  the  four.  Originally  the  lines 
DE,  AE,  and  BE  were  run,  but  line  EC  was  not  run.  That 
is,  the  corner  E  was  located  with  reference  to  only  three  di- 
rections. Such  corner  E — the  corner  common  to  the  four 
townships  is  lost.  Corners  A,  B,  D  and  F,  all  section  corners 
on  township  lines  are  identified.  Would  you  let  me  know 
how  corner  E  is  to  be  re-established  or  restored?  Assumed 
notes  give  distance  DE,  BE,  AE  and  AF. 

"Second  Proposition.  Assuming  the  corner  E  was  orig- 
inally fixed  by  lines  or  measurements  in  two  directions  only, 
as  lines  DE  and  AE.  Section  corners  A,  D  and  F  on  township 
lines  are  identified.  How  should  corner  E,  now  lost,  be  re- 
stored? It  will  be  assumed  that  the  notes  give  the  distances 
FA,  AE  and  DE  in  this  second  proposition;  also  the  dis- 
tance DG. 

"Thanking  you,  I  am,  Yours  truly, 

F.  E.  CLARK." 

(References  herein  are  to  Fig.  88.) 

On  January  5th,  1920,  the  commissioner  replied  as  follows : 
"Mr.  F.  E.  Clark, 
"Minneapolis,  Minn. 
"My  Dear  Sir: 

"Replying  to  your  letter  of  December  I9th,  1919,  relative  to 
the  restoration  of  a  lost  corner  common  to  four  townships 
under  certain  hypothetical  conditions  described  in  your  letter, 
you  are  advised  that  in  general  such  restorations  are  subject 
to  4-point  control  irrespective  of  the  question  whether  all  of 
the  lines  initiated  from  or  terminating  upon  the  said  corner 
were  established  at  or  about  the  same  time. 


399        %  RESTORATION   OF  LOST   CORNERS  §    381 

* 'However,  upon  the  hypothesis  set  forth  in  your  letter,  it 
may  be  stated  that  in  the  first  case  cited  the  latitudinal  posi- 
tion of  the  missing  corner  should  be  determined  by  simple 
proportion  based  upon  the  record  of  the  original  survey  be- 
tween the  points  B  and  D.  The  corresponding  position  in  de- 
parture should  be  obtained  by  projecting  the  record  measure- 
ment easterly  from  the  point  A.  The  true  position  of  the 
missing  corner  will  then  be  found  at  the  intersection  of  car- 
dinal offsets  from  the  two  temporary  points  thus  established. 
In  this  connection  it  is  to  be  observed  that  the  points  F  and  G 
will  not  enter  into  the  problem,  as  the  points  A  and  D,  upon 
the  same  lines,  are  nearer  to  the  locus  of  the  missing  corner. 

"Under  the  conditions  raised  in  your  second  inquiry,  the 
missing  corner  E  should  be  established  at  the  intersection  of 
cardinal  offsets  from  two  temporary  points  determined  by  pro- 
jecting the  record  of  the  original  survey  northerly  from  the 
point  D  and  easterly  from  the  point  A  in  the  manner  suggested 
in  the  preceding  paragraph. 

"Very  respectfully, 

C.  M.  TRUCE, 
Assistant  Commissioner." 

Referring  to  Figures  87  and  88,  to  so  restore  corner  E 
under  the  first  assumption,  the  surveyor  should  measure 
northerly  from  D  to  B  and  set  a  temporary  stake  near  E,  Fig. 
88,  as  at  H,  Fig.  87,  at  a  proportional  distance.  Then  measure 
from  A  toward  E,  the  government  distance  setting  a  tem- 
porary stake  as  at  I  Fig.  87.  Then  run  offsets  IO  and  HO 
intersecting  at  O,  the  corner  to  be  restored.  In  our  opinion 
the  chain  or  tape  should  be  adjusted  to  correspond  with  orig- 
inal measurement  by  measuring  other  lines  in  that  immediate 
vicinity  run  at  the  same  time.95 

In  the  second  assumption,  measure  from  D  toward  E,  the 
government  distance  and  from  A  toward  E,  the  government 

95Post  §  382. 


§    3^2  SURVEYING  AND  BOUNDARIES  4OO 

distance,  and  at  those  points  set  temporary  stakes  as  at  I  and 
H,  Fig.  87.  Run  the  offsets  IO  and  HO,  intersecting  at  O. 
Point  O  will  be  the  position  of  the  restored  corner. 

§  382.  To  restore  lost  meander  corner.— Where  the 
meander  corner  was  originally  established  on  a  line  projected 
across  the  body  of  water,  such  lost  meander  corner  will  be 
restored  by  single  proportionate  measurement.  The  sur- 
veyor must  first  determine  the  distance  across  such  body  of 
water  and  also  the  distance  to  the  first  identified  corner  be- 
yond, as  a  basis  for  computation  of  the  proportional  distance 
required.  If  the  meander  corner  is  not  on  a  line  projected 
across  the  body  of  water,  then  the  surveyor  will  determine 
the  location  of  such  meander  corner  under  the  rule  laid  down 
in  this  chapter,  as  promulgated  by  the  commissioner  of  the 
land  office.  (67)  That  is,  he  will  measure  several  known 
lines  in  the  immediate  vicinity  of  the  lost  meander  corner  and 
also  take  the  bearings  of  several  of  such  lines.  Thus  he  can 
determine  approximately  the  proportional  distance  to  lay  off 
from  a  known  corner  and  also  the  bearing  of  such  line  in  re- 
storing such  meander  corner.  To  illustrate,  assume  that  the 
meander  corner  A,  Fig.  89,  is  lost.  Required  to  restore  it. 
The  surveyor  will  carefully  retrace  the  lines  BC,  DE  and  FG, 
the  corners  B,  C,  D,  E,  F  and  G  being  known.  He  will  take 
the  three  distances  and  determine  a  definite  surplus  or  de- 
ficiency— a  general  average.  He  will  likewise  determine  the 
bearings  of  the  three  lines — a  mean  will  give  the  approximate 
bearing  of  line  AB.  Run  such  line  with  such  bearing  and  lay 
off  the  proportional  distance  as  determined  by  computation 
using  the  general  average,  surplus  or  deficiency. 

§  383.  Restoring  lost  corners  on  broken  boundaries. — The 
surveyor  will  occasionally  find  it  necessary  to  restore  lost 
corners  on  broken  lines.  It  may  occur  on  a  township  line  which 
is  not  uniform,  and  what  is  said  here  applies  to  restoring  such 
corners,  as  well  as  other  corners.  Referring  to  Figure  90,  let 


401 


RESTORATION  OF  LOST   CORNERS 


§    383 


it  be  assumed  that  the  corners  A  and  D  in  the  irregular  line 
ABCD  are  known;  that  the  corners  B  and  C  are  lost;  that 
the  surveyor  has  the  record  of  the  original  bearings  and  dis- 
tances of  all  the  lines.  He  should  begin  at  the  point  A,  lay 
off  the  record  bearing  and  measure  the  record  distance  toward 


35 


36 


Fiq.89 


b,  at  which  point  a  temporary  stake  should  be  planted.   From 

b,  he  should  lay  off  the  record  bearing  and  the  distance  toward 

c,  at  which  point  a  temporary  stake  should  be  planted.   From 
c,  he  should  lay  off  the  record  bearing  and  distance  and  plant  a 
temporary  stake  at  d.     He  should  then  determine  the  error 
D-d  and  the  bearing  thereof,  and  at  each  of  the  corners  set 


§  3«3 


SURVEYING  AND  BOUNDARIES 


402 


back  the  proportional  number  of  feet  according  to  the  length. 
The  proportion  for  the  first  correction  should  be  AB  :  AD  :  : 
Bb  :  Dd.  Substituting  the  distances  given  in  the  diagram  we 
have  for  Bb  6  2/3.  From  b  set  back  toward  B  6  2/3  feet. 
The  closing  of  the  lengths  of  the  several  lines  will  be  ascer- 


Fiq.  90 


tained  also  and  the  several  corners  finally  established  at  the 
proper  adjusted  distances.  Shoud  the  entire  distance  over-run 
or  fall  short  allowance  will  be  made  at  the  several  corners  and 
proper  corrections  made.  By  adjusting  the  temporary  posts, 
having  regard  for  errors  in  both  directions,  the  correct  corners 


403  fe          RESTORATION  OF  LOST   CORNERS  §    384 

can  be  restored.  The  1919  Manual  (380)  provides  that  the 
bearing  of  B-b,  C-c  and  D-d  should  all  be  the  same.  That 
is,  B-b  and  C-c  should  be  made  parallel  with  D-d.  It  is  doubt- 
ful whether  this  would  be  true. 

§  384.  Restore  a  lost  closing  corner  on  standard  parallel. — 
A  closing  on  a  standard  parallel  must  not  go  beyond  such 
standard  parallel.  Hence,  in  restoring  a  lost  closing  corner  on 
such  parallel,  the  surveyor  should  first  run  such  standard  par- 
allel, setting  a  temporary  post  at  the  distance  shown  in  the 
field-notes,  on  such  parallel.  He  should  then  set  the  per- 
manent corner  by  single  proportionate  measurement  between 
the  nearest  identified  corners  on  such  parallel.  Should  it  de- 
velop that  a  post  was  set  or  a  tree  marked  on  the  north  and 
south  line  either  north  or  south  of  the  standard  parallel,  it 
would  control  the  location  as  to  the  departure  but  not  as  to  the 
latitude.  The  latter  is  controlled  by  the  parallel.96  The  sur- 
veyor will  undoubtedly  find  unusual  instances,  as  where  by 
reason  of  manifest  distortion  in  the  lengths  of  lines  or  in  cases 
where  many  corners  have  been  lost  in  the  vicinity  of  the 
corner  sought.  In  such  cases,  he  must  exercise  his  best  judg- 
ment in  the  restoration.  If  he  be  very  much  in  doubt  after  a 
careful  consideration  of  all  the  points,  as  to  the  method  to  be 
pursued,  he  can  get  valuable  suggestions  from  the  commis- 
sioner of  the  general  land  office,  by  writing  that  officer  and 
clearly  setting  forth  the  problem.  The  methods  suggested  in 
this  chapter,  as  well  as  those  suggested  in  the  chapter  on 
"Some  Usual  and  Unusual  Questions  Answered,"  are  based  on 
the  rules  laid  down  by  the  land  department,  and  also  on  de- 
cisions of  the  courts  of  last  resort  in  the  several  states.  There 
is  a  principle  running  through  all  of  the  cases  which  should 
be  followed  in  the  restoration  of  lost  corners.  That  principle 
is  one  of  equity. 

96Manual    (1919),  378;  R.  L.  C. 
(1909),  55- 


SURVEYING  AND  BOUNDARIES  404 

§  385.  Government  corners  conclusive. — The  corners  es- 
tablished by  the  United  States  surveyors  are  conclusive  as  to 
location  of  boundary  lines  of  sections  and  subdivisions  there- 
of.97 And  such  corner  is  where  the  government  surveyors 
planted  it  right  or  wrong.98  A  state  statute  can  not  change 
such  corner  if  it  can  be  found  or  located  according  to  the  rules 
prescribed  by  the  surveyor-general  of  the  United  States.99 
And  still  lines  long  established  should  not  be  disregarded. 
They  may  form  the  basis  for  the  most  accurate  and  satisfac- 
tory way  of  restoring  a  lost  corner. 

§  386.  Obliterated  meander  corners. — Obliterated  or  lost 
meander  corners  are  to  be  restored  according  to  the  rules  pre- 
scribed by  the  United  States  land  office  for  the  "Restoration 
of  Lost  and  Obliterated  Corners,"  (igoo,).1  Such  lost  mean- 
der corner  should  be  established  by  proportionate  measure- 
ment. For  instance,  if  such  corner  be  between  the  east  or  west 
quarter-corner  and  the  north  boundary  of  the  section,  then  the 
surveyor  should  find  such  quarter-corner  and  also  the  section 
corner  first  to  the  south.  He  will  then  measure  from  such 
section  corner  northerly  along  the  section  line  on  random  to 
such  quarter-corner,  noting  the  distance  and  departure  care- 
fully, and  continue  northerly,  planting  the  lost  meander  cor- 
ner in  line  with  the  quarter-corner  and  section  corner  and  at 
a  proportionate  distance  from  section  corner. 

§  387.  Irreconcilable  and  inconsistent  calls. — Irreconcilable 
and  inconsistent  calls  in  a  description  are  to  be  given  effect  in 
the  following  order:  I.  Natural  objects;  2.  Artificial 
marks  or  monuments;  3.  Courses  and  distances.2  But  it  has 
been  held  by  the  same  court  that,  "Where  government  corner 

97Frederitzie  v.  Boeker,  193  Mo.  "Beltz  v.  Mathiowitz,  72  Minn. 

228,  92  S.  W.  227;  Tolleston  Club  443,  75  N.  W.  699. 

v.   State,   141   Ind.   197,  38   N.   E.  1Kleven  v.  Gunderson,  95  Minn. 

214,   40  N.  E.  690.  246,  104  N.  W.  4. 

98Beltz  v.  Mathiowitz,  72  Minn.  2Kleven  v.  Gunderson,  95  Minn. 

443,  75  N.  W.  699.  246,  104  N.  W.  4;  ante  §  382. 


4O5  %          RESTORATION   OF  LOST   CORNERS  §    3QO 

is  lost  or  obliterated,  so  that  resort  must  be  had  to  the  govern- 
ment notes  to  determine  its  location  and  such  notes  are  in- 
consistent, there  is  no  universal  rule  that  certain  ones  shall 
be  preferred  over  others.  Those  should  be  accepted  which 
under  all  of  the  circumstances  are  entitled  to  the  greater  credit 
as  evidence  and  most  likely  to  be  according  to  fact."3 

§  388.  Original  corners  can  not  be  corrected  by  court. — 
In  determining  the  identity  of  land  within  a  township,  where 
the  original  survey  was  concededly  erroneous,  the  question  to 
be  decided  is  the  location  of  the  actually  established  govern- 
ment corners ;  and  it  is  not  the  province  of  the  court  to  rectify 
errors  in  such  surveys.4  The  corners  of  government  sub- 
divisions in  the  public  land  survey  are  where  the  government 
surveyors  put  them;  and  the  courts  can  not  correct  errors  in 
the  location.5 

§  389.  Survey  made  under  state  law. — A  survey  made 
under  state  law  without  regard  to  government  corners,  and 
with  no  thorough  attempt  to  locate  obliterated  or  lost  corners 
is  not  binding.6  In  determining  particular  claims  as  to  what 
is  a  particular  quarter-section,  resort  must  be  had,  first,  to 
the  monuments  placed  at  the  various  corners,  when  the  original 
government  survey  was  made,  provided  they  are  still  in  exist- 
ence, or  can  be  relocated  by  any  attainable  data.7  And  it  is 
held  that  the  original  survey  is  not  open  to  collateral  attack 
and  is  presumed  to  be  correct.8 

§  390.  Where  government  survey  is  grossly  fraudulent. — 
While  it  is  generally  held  that  courses  and  distances  are  the 
lowest  degree  of  evidence  of  the  locations  of  corners  yet  it  is 

3Stadin  v.  Helin,  76  Minn.  496,  6Mason  v.  Braught,  33  S.  Dak. 

79  N.  W.  537.  559,  146  N.  W.  687. 

4Mason  v.  Braught,  33  S.  Dak.  7Mason  v.  Braught,  33  S.  Dak. 

559,  146  N.  W.  687.  559,  146  N.  W.  687. 

5Goroski  v.  Tawney,  121  Minn.  8Russell  v.  Maxwell  Land  Grant 

189,  141  N.  W.  102.  Co.,  158  U.  S.  253,  39  L.  ed.  971,  15 

Sup.  Ct.  827. 


§    391  SURVEYING  AND  BOUNDARIES  406 

said  that,  "Courses  and  distances  set  forth  in  plan  of  survey 
govern  where  survey  was  grossly  fraudulent,  and  (a  certain 
lake)  never  existed  within  half  a  mile  of  point  indicated  on  the 
plat,  and  to  fix  the  lake  as  a  boundary  would  give  the  patentee 
an  area  very  much  in  excess  of  land  paid  for  and  necessitate 
going  outside  of  the  section  in  which  the  description  and  plat 
placed  the  land.9  See  chapter  on  "Alluvion,  Avulsion  and 
Reliction"  for  a  discussion  of  the  principles  of  this  case.  It 
will  be  noted  it  was  the  fraudulent  survey  that  vitiated  itself 
and  for  that  reason  the  court,  in  effect,  holds  that  the  lake — 
the  natural  monument — never  existed  and  makes  the  meander 
line  as  indicated  on  the  plat,  the  boundary  line.  In  other 
words,  fraud  vitiates  everything.10 

§  391.  Apportion  distance  between  two  known  corners  to 
establish  lost  corner. — Where  the  corners  of  a  lot  in  a  recorded 
plat  have  been  lost,  they  should  be  re-established  by  measuring 
between  two  known  corners  on  opposite  sides  of  the  lost  cor- 
ner and  apportioning  the  distance  according  to  the  original 
measurements.  If  there  are  two  such  known  corners  in  the 
same  block,  they  should  be  used  in  making  such  measurements, 
but  if  not,  the  surveyor  should  go  to  the  nearest  known  cor- 
ner or  corners  in  another  block.11  In  this  case  the  court  says : 
"The  unvarying  rule  to  be  followed  in  such  cases  is  to  start 
at  the  nearest  known  point  on  one  side  of  the  lost  corner,  on 
the  line  on  which  it  was  originally  established ;  to  then  measure 
to  the  nearest  known  corner  on  the  other  side,  on  the  same 
line;  then  if  the  length  of  the  line  is  in  excess  of  that  called 
for  by  the  original  survey,  to  divide  it  between  the  tracts  con- 
necting such  two  known  points,  in  proportion  to  the  lengths  of 
the  boundaries  of  such  tracts  on  such  line  as  given  on  such 

8Security    Land    &    Exploration  Minn.  97,  91  N.  W.  304,  63  L.  R. 

Co.  v.  Burns,  193  U.  S.  167,  48  L.  A.  157,  94  Am.  St.  684. 

ed.  662,  24  Sup.  Ct.  425.  "Lewis  v.  Prien,  98  Wis.  87,  73 

10Ante  Ch.  XIV;  Security  Land  N.  W.  654. 
&  Exploration    Co.    v.    Burns,    87 


407 


RESTORATION   OF   LOST   CORNERS 


§    391 


survey."  "The  method  always  followed  in  re-establishing  cor- 
ners, is  to  measure  the  line  connecting  the  nearest  known  cor- 
ners on  the  same  line,  on  either  side  of  the  lost  corner,  and 
then  divide  the  excess,  if  any  be  found  as  before  stated/'12 


16 


13 


to 


F.qQJ 

See  Fig.  91.  Known  corners  A,  B,  F,  E.  Lost  corners  C, 
D,  G.  Disputed  line  C  G.  Disputed  tract  indicated  by  dotted 
line  south  of  lot  8.  Measure  A  B  and  apportion  distance 
according  to  original  measurement  at  C.  This  point  marks 


12Lewis  v.  Prien,  98  Wis.  87,  73 
N.  W.  654;  Pereles  v.  Magoon,  78 
Wis.  27,  46  N.  W.  1047,  23  Am.  St. 


389;  Jones  v.  Kimble,  19  Wis.  429; 
O'Brien  v.  McGrane,  27  Wis  446. 


§    392  SURVEYING  AND  BOUNDARIES  408 

the  east  end  of  the  disputed  line.  Establish  G  by  measuring 
E  F  and  apportioning  distance  according  to  the  original  meas- 
urement. Connect  C  G.  C  G  is  the  true  boundary  line.  If 
distances  should  be  the  same  length  as  original  measurements, 
no  apportionment  would  be  necessary. 

§  392.  Witness  trees. — A  witness  or  bearing  tree  is  not  an 
established  corner,  but  merely  a  designated  object  from  which, 
in  connection  with  the  field-notes,  the  location  of  the  corner 
may  be  ascertained.13 

§  393.  Lost  corner  on  standard  parallel. — A  survey  made 
for  the  purpose  of  establishing  lost  corners  on  a  standard 
parallel  or  correction  line  may  be  rejected  in  part  because  made 
under  a  mistake  of  fact  as  to  the  existence  and  location  of  a 
certain  section  corner,  and  yet  be  adopted  by  the  court  insofar 
as  it  was  not  controlled  by  such  mistake.14 

§  394.  Variation  between  meander  line  and  field-notes. — 
Where  there  is  a  variation  between  the  meander  line  estab- 
lished by  the  surveyors  as  shown  by  the  official  plat  of  the 
survey  and  the  field-notes,  the  former  controls.15 

§  395-  Courses  and  distances  yield  to  fixed  monuments. — 
It  is  the  universal  rule  that  courses  and  distances  must  yield 
to  fixed  monuments.  Such  courses  and  distances  might  place 
the  corner  at  some  point  other  than  the  so-called  fixed  monu- 
ment, but  nevertheless,  the  latter  must  control.16  And  it  is 
said,  "It  is  the  general  rule  here,  as  well  as  elsewhere,  that 
courses,  distances  and  descriptions  must  yield  to  actually 
existing  monuments,  or  to  the  site  of  their  former  location,  if 
clearly  established."17  And  it  is  the  rule  that  the  true  corner 

13Stadin  v.  Helin,  76  Minn.  497,  Minn.  234,  178  N.  W.  317,  180  N. 

79  N.  W.  537.  VV.  37- 

14Ferch  v.  Konne,  78  Minn.  515,  17Beltz  v.  Mathiowitz,  72  Minn. 

81  N.  W.  524.  443,  75  N.  W.  699;  Chan  v.  Brandt, 

1RHanson  v.  Rice,  88  Minn.  273,  45  Minn.  93,  47  N.  W.  461 ;  Yan- 

92  N.  W.  982.  ish  v.  Tarbox,  49  Minn.  268,  51 

16Lawler    v.    Rice    County     147      N.  W.  1051. 


409  -  RESTORATION   OF  LOST   CORNERS  §    396 

of  a  government  subdivision  is  where  the  government  sur- 
veyors established  it,  and  this  whether  or  not  it  be  right  or 
wrong.18  And  it  is  said,  "In  the  public-land  surveys  the  cor- 
ners of  government  subdivisions  are  where  the  government 
surveyors  correctly  or  mistakenly  place  them;  and  errors  in 
their  location  can  not  be  corrected  by  the  courts."19  And  a 
lost  corner  is  one  whose  location  can  not  be  found  by  resorting 
to  evidence  at  hand  and  competent.  The  fact  that  physical 
location  of  corner  can  not  be  seen  does  not  necessarily  make  it 
a  lost  corner.20 

§  396.  Must  regard  field-notes  and  must  search  for  cor- 
ners.— A  county  surveyor  employed  to  restore  the  lines  and 
corners  of  adjacent  tracts  of  land  according  to  the  original 
government  survey,  found  the  township  corners  only,  then 
(the  other  section  and  quarter-section  corners  being  missing) 
ran  a  straight  line  from  one  township  corner  to  another,  and 
on  this  line  placed  the  quarter  and  section  corners,  but  did  not 
take  any  testimony  to  ascertain  the  lines  or  corners  of  the 
original  survey;  did  not  attempt  to  prove  his  lines  or  corners 
by  re-establishing  the  missing  corners  from  all  of  the  nearest 
known  original  corners,  in  all  directions;  did  not  sufficiently 
regard  the  field-notes;  and  did  not,  where  the  original  monu- 
ments had  disappeared,  regard  the  boundary  lines  long  recog- 
nized and  acquiesced  in.  Held  that  such  a  survey  is  incom- 
plete and  can  not  be  approved  as  the  true  and  correct  deter- 
mination of  the  boundaries  and  corners,  as  originally  estab- 
lished by  the  government.21 

18Beardsley  v.  Crane,  52  Minn.  20Goroski  v.  Tawney,  121  Minn. 

537,  54  N.  W.  740.  189,  141  N.  W.  102. 

19Chan  v.  Brandt,  45  Minn.  93,  21Reinert  v.  Brunt,  42  Kans.  43, 

47  N.  W.  461.  21  Pac.  807. 


CHAPTER  XVI 


EVIDENCE  OF  LOCATION   OF   CORNERS  OR  LINES 


Sec. 

397.  Generally. 

398.  Testimony  of  those  who  saw 

corner. 

399.  Declarations    of    surveyor    to 

show  mistake. 

400.  Declarations    of    sur- 

veyors   since   deceased. 

401.  Positive    and    uncontradicted 

testimony  as  to  corner. 

402.  Surveyor    may    testify    as    to 

declarations  of  old  residents. 

403.  Declarations  of   surveyor. 

404.  Declarations     as     to     private 

boundaries. 

405.  Evidence   of    common    repute 

as  to  location  of  boundary  or 
corner. 

406.  Maps  as  evidence. 

407.  An  ancient  plan  of  town  from 

natural  source. 

408.  Undisputed    line    in    another 

town. 


of     one     line     by 


Sec. 

409.  Location 

another. 

410.  Ancient  fences. 

411.  Testimony   of    surveyors. 

412.  Parol       evidence      to      show 

boundaries. 

413.  Identify    monument — Ambig- 

uous description. 

414.  Original    corners    and    patent 

inconsistent. 

415.  Marked     trees — Courses    and 

distances — P  a  r  o  1    evidence. 

416.  General    reputation — Declara- 

tions— Private  boundaries. 

417.  Depositions  of  deceased  sur- 

veyor taken  in  other  case. 

418.  Deceased    surveyor's     ancient 

plans,  notes,  etc.,  admissible. 

419.  Declarations      of      interested 

persons   since  .deceased. 


§  397.  Generally. — A  surveyor  is  not  always  familiar  with 
the  kind  of  evidence  to  which  he  may  resort  to  aid  him  in  re- 
establishing a  lost  or  obliterated  corner  or  to  retrace  an  obliter- 
ated line.  He  knows  he  may  always  use  the  field-notes  and 
such  accessories  as  may  be  mentioned  therein  to  aid  him  in 
locating  a  corner.  He  knows  that  natural  features  found  in 
the  topography  of  the  country,  such  as  streams,  marshes, 
swamps,  ledges,  rocks,  etc.,  may  be  of  material  assistance  to 

410 


411  EVIDENCE  OF  LOCATION  OF  CORNERS  OR  LINES        §    398 

him  in  relocating  lines  and  corners  in  all  cases  to  which 
reference  is  made  in  the  field-notes.  He  knows,  too,  that  line- 
trees  to  which  reference  is  made  in  the  notes  and  which  can  be 
identified,  are  permanent  monuments  of  the  true  location  of 
the  line  at  that  point. 

However,  when  all  visible  evidence  of  the  true  location  of 
the  corner  or  line  has  been  destroyed,  he  runs  up  against 
another  question.  He,  at  once,  asks  himself  the  question: 
Is  the  corner  or  line  a  lost  one  ?  Or  can  he  resort  to  extrinsic 
evidence  to  show  the  former  location  of  the  corner  or  line,  and, 
if  so,  to  what  extent  and  what  kind  of  evidence  may  he  regard 
and  act  upon  ?  If  he  locates  the  corner  by  the  aid  of  such  evi- 
dence, is  the  corner  a  lost  corner  within  the  meaning  of  the 
rules  laid  down  by  the  land  department  ? 

He  may  regard  the  evidence  of  old  residents  as  to  the  loca- 
tion of  a  corner,  but  to  what  extent  and  under  what  circum- 
stances may  he  regard  such  evidence?  Will  he  be  permitted 
to  resort  to  the  use  of  the  declarations  of  persons  since  de- 
ceased as  to  the  location  of  a  corner,  now  obliterated?  Can 
he  locate  a  corner  or  line  by  general  reputation  in  the  com- 
munity? These  and  kindred  questions  are  a  source  of  much 
perplexity  to  the  surveyor.  We  propose  to  treat  them  briefly 
under  this  title,  although  we  have  touched  on  many  of  them 
in  other  parts  of  this  work. 

§  398.  Testimony  of  those  who  saw  corner. — In  determin- 
ing the  location  of  original  corners  which  have  been  obliter- 
ated, it  is  clear  that  the  surveyor  may  receive  the  testimony  of 
those  who  knew  where  such  original  corner  was  located  and  to 
identify  the  spot  by  any  means  within  the  knowledge  of  the 
person  so  locating  it.  Testimony  that  fences  were  originally 
built  to  the  corner  and  that  such  fences  are  now  maintained 
in  the  same  position  as  originally  built  should  not  be  disre- 
garded by  the  surveyor.  They  are  monuments  and  should  be 
given  great  weight  in  the  location  of  obliterated  corners.  They 


§    399  SURVEYING  AND  BOUNDARIES  412 

will  take  precedence  of  corners  established  by  measurements  to 
other  corners.  In  fact,  where  the  testimony  is  clear  and  posi- 
tive, and  there  are  no  circumstances  which  might  cast  doubt 
on  it,  they  mark  the  original  corner.  And  it  is  said :  "In  de- 
termining the  original  government  lines  and  corners,  it  is 
proper  to  consider  the  testimony  of  those  who  saw  them  when 
discernible,  their  practical  location  made  at  a  time  when  pre- 
sumably in  existence,  acquiescence  of  parties,  acts  of  public 
authorities  with  respect  thereto,  boundaries  of  contiguous 
tracts,  and  their  reputation  and  tradition."1 

§  399.  Declarations  of  surveyor  to  show  mistake. — The 
declarations  of  the  surveyor  who  made  the  survey  are  received 
in  evidence,  not  only  to  show  the  true  line  or  the  true  corner, 
but  also  to  show  certain  mistakes  have  been  made  and  it  is 
said2  that  "The  declarations  of  the  surveyor  who  made  the  sur- 
vey is  competent  evidence  to  show  that  the  mistake  therein  is  in 
the  call  for  a  natural  object,  and  not  in  the  call  for  a  course 
and  distance."  Doubtless  it  would  be  required  to  be  shown 
that  such  declarations  were  made  by  the  surveyor  while  in  the 
act  of  making  such  survey  or  in  establishing  some  line  or  corner 
to  which  such  declarations  referred.3 

§  400.  Declarations  of  surveyors  since  deceased. — The  rule 
that  declarations  of  a  deceased  owner  with  respect  to  a  boun- 
dary are  competent  evidence  only  when  made  on  the  ground, 
applies  also  to  declarations  of  a  deceased  surveyor.  Such 
declarations  are  admissible  as  being  a  part  of  the  res  gestae. 
The  original  corner  as  established  by  the  government  may  be 
proven  by  repute  or  reputation.  The  field-notes  of  a  deceased 
surveyor  are  admissible  as  declarations  contemporaneous  with 
the  work  done  on  the  ground,  provided  they  are  authenticated 

1Rowell  v.  Weinemann,  119  Iowa          2 Johnson   v.   Archibald,   78   Tex. 
256,  93  N.  W.  279,  97  Am.  St.  310.      96,   14  S.  W.  266,  22  Am.  St.  27. 

3Ante  Ch.  12. 


413  EVIDENCE  OF  LOCATION  OF  CORNERS  OR  LINES        §    403 

in  some  way  other  than  by  the  mere  declarations  of  the  sur- 
veyor himself.4 

§  401.  Positive  and  uncontradicted  testimony  as  to  corner. 
— Positive  and  uncontradicted  testimony  of  competent  wit- 
nesses as  to  the  location  of  an  original  government  corner,  as 
seen  by  them,  will  prevail  over  the  location  of  such  corner  as 
found  by  a  resurvey.5  A  surveyor  may  use  the  records  of  a 
survey  made  by  him  for  the  purpose  of  refreshing  his  mem- 
ory, although  the  survey  was  not  made  in  accordance  with 
the  requirements  of  the  statute.  A  copy  of  such  record  may 
be  used  for  that  purpose  when  it  is  not  objected  to  as  being 
a  copy.6 

§  402.  Surveyor  may  testify  as  to  declarations  of  old  resi- 
dents.— In  a  processionary  proceeding,  never  perfected,  certain 
old  people  living  in  the  neighborhood  were  requested  to  locate 
a  corner  previously  marked  by  a  gate  post,  and  from  this  a 
surveyor  ran  the  line.  Held  that,  all  of  such  old  citizens  being 
dead  at  the  time  the  suit  was  brought  to  determine  the  boun- 
dary line,  the  surveyor  was  entitled  to  testify  concerning  such 
facts.7  That  is,  the  surveyor  was  permitted  to  testify  to  the 
declarations  of  such  old  residents  made  by  them  while  in  the 
act  of  pointing  out  the  gate  post,  which  marked  the  original 
corner  and  so  known  to  them.  Proper  foundation  should  be 
laid  before  such  testimony  will  be  received. 

§  403.  Declarations  of  surveyor.— The  declarations  of  a 
surveyor,  made  at  the  time  the  survey  was  being  prosecuted, 
and  a  part  of  the  transaction,  are  admissible  in  evidence  in 
establishing  corners  or  lines  run  by  such  surveyor  at  the  time.8 
This  is  the  general  rule  and  generally  the  private  notes  kept  by 

4Collins  v.   Clough,  222   Pa.   St.      S.  W.  461,  17  Am.  St.  549. 
472,  71  Atl.  1077,  15  Ann.  Cas.  871.          7Phillips  v.  Stewart,  133  Ky.  134, 

5Mills  v.  Penny,  74  Iowa  172,  37      97  S.  W.  6,  134  Am.  St.  441. 
N.  W.  135,  7  Am.  St.  474-  8Barclay  v.  Howell,  6  Pet.  498,  8 

6Krider  v.  Milner,  99  Mo.  145,  12      L.  ed.  477 ;  Ellicott  v.  Pearl,  i  Mc- 
Lean 206,  Fed.  Cas.  No.  4386. 


§   /O4  SURVEYING  AND   BOUNDARIES  414 

a  surveyor  at  the  time  of  making  a  survey  are  admissible  as 
declarations.9  But  the  declarations  of  a  surveyor  which  con- 
tradict his  official  return  or  record  are  clearly  not  evidence, 
nor  should  they  be  received,  where  he  has  no  power  to  exercise 
discretion,  as  explanatory  of  his  return,  while  he  is  still  living 
and  may  be  examined  as  a  witness.10  Declarations  of  persons 
to  establish  public  or  general  rights  may  be  shown,  and  it  is 
not  essential  to  the  admission  of  such  declarations  that  the 
witness  testifying  to  them  should  be  able  to  state  the  name 
of  the  person  who  made  the  declaration.11 

§  404.  Declarations  as  to  private  boundaries. — It  is  the 
rule  in  England  that  declarations  as  to  boundary  lines  will  not 
be  received  except  where  the  line  is  one  of  general  and  public 
interest.12  This  is  not  the  general  rule  in  this  country  as  will 
be  seen  by  an  examination  of  the  authorities.  The  rule  is 
illustrated  in  the  case  of  Morton  v.  Folger,13  where  the  facts 
were :  Suit  by  A  v.  X  to  recover  certain  lands,  a  part  of  a 
large  tract,  concerning  which  A  had  prior  thereto  brought 
suit  against  other  parties  as  to  certain  other  parts.  In  a  prior 
suit  a  certain  surveyor  had  testified  as  to  certain  boundaries. 
The  same  boundaries  were  in  dispute  in  the  suit  at  bar.  The 
surveyor  having  died,  it  was  held  that  his  previous  testimony 
was  admissible.  The  court  says:  "It  is  not  necessary,  how- 
ever, according  to  the  authorities  in  the  majority  of  the 
American  states,  that  the  hearsay,  to  entitle  it  to  be  received, 
should  be  general,  or  relate  to  boundaries  in  which  the  public 
or  numerous  persons  are  interested.  It  may  be  limited  to  par- 
ticular facts  embracing  the  declarations  of  a  single  individual, 
provided  such  individual  had,  from  his  situation,  the  means  of 
knowledge,  and  was  disinterested  in  the  matter  and  may  relate 

9Detwiler  v.  Toledo,  13  Ohio  Cir.  11Moseley  v.  Davies,  n  Price  162. 

Ct  579.  12Doe  v.  Thompson,  14  East  323, 

10Barclay  v.  Howell,  6  Pet.  498,  22  N.  H.  217. 

8  L.  ed.  477.  13Morton  v.  Folger,  15  Cal.  275. 


415    -EVIDENCE  OF  LOCATION  OF  CORNERS  OR  LINES   §  405 

only  to  the  boundary  of  a  private  entry."  In  Harriman  v. 
Brown14  we  find  the  court  saying:  "Because  we  have  not 
manors,  shall  we  therefore  lose  the  benefit  of  the  rule  which 
considers  boundary  as  matter  of  reputation,  and  permits 
hearsay  evidence  of  its  locality?  If  a  like  state  of  things 
exists  among  us,  if  the  principle  will  be  found  to  apply  in  its 
utmost  strictness,  shall  we  reject  the  evidence  because  the  case 
is  not  identical?  By  no  means."  In  Wooster  v.  Butler15 
the  court  permitted  two  aged  men  to  testify  that  when  they 
were  young  they  heard  old  men,  since  deceased,  say  that 
there  was  a  traveled  road  or  highway  over  a  certain  piece 
of  land.  The  location  of  the  highway  was  a  fact  tending  to 
show  the  location  of  the  private  boundary  claimed  by  the  plain- 
tiff. The  court  lays  down  the  rule  that  the  old  doctrine  has 
been  extended,  "to  prove  the  boundaries  of  lands  between 
individual  proprietors." 

§  405.  Evidence  of  common  repute  as  to  location  of  boun- 
dary or  corner. — Such  evidence  according  to  the  English  rule 
is  admissible  only  as  to  public  boundaries  or  corners.  Accord- 
ing to  the  American  rule,  the  clear  weight  of  authority  is  to 
the  effect  that  not  only  public  boundaries  but  also  private 
boundaries  and  private  corners  are  subject  to  the  rule.  In 
Thoen  v.  Roche,16  the  court  says :  "There  is  considerable  dif- 
ference between  the  English  and  many  American  authorities 
in  the  application  of  the  rule  which  admits  evidence  of  com- 
mon repute  on  the  question  of  boundaries.  The  English  de- 
cisions confine  it  to  cases  of  boundaries  that  are  matters  of 
public  or  general  interest,  such  as  boundaries  of  counties, 
towns,  parishes,  or  manors.  Many  American  authorities  go 
beyond  this,  some  going  so  far  as  to  apply  the  rule  to  cases  of 
purely  private  boundaries,  where  no  one  has  any  interest  in 

14Harriman  v.  Brown,  8  Leigh  16Thoen  v.  Roche,  57  Minn.  139, 
(Va.)  697.  58  N.  W.  686,  47  Am.  St.  600  and 

15Wooster    v.    Butler,    13  Conn.       note. 
309. 


§    405  SURVEYING  AND  BOUNDARIES  416 

the  question  but  the  adjoining  estates.  Some  of  those  are 
without  the  support  of  the  reason  for  the  rule.  The  rule  rests 
on  necessity,  better  evidence  of  the  boundary  having  ceased  to 
exist,  and  is  justified  on  the  theory  that  where  many  persons, 
members  of  a  community  more  or  less  extensive,  are  interested 
in  a  common  boundary,  they  will  know  where  it  is,  and  their 
common  assent  will  prove  what  they  know." 

"Boundaries  and  monuments  for  boundaries  under  the 
United  States  system  of  surveys  come  within  the  reason  for 
the  rule,  and  within  its  application,  even  under  the  English 
decisions.  In  the  first  place,  the  establishment  of  such  boun- 
daries is  a  public  act,  and  not  merely  a  private  act  or  agree- 
ment between  two  owners  of  contiguous  estates.  In  the  sec- 
ond place,  it  may,  and  usually  does,  come  to  affect  the  interest 
of  many  persons.  Thus  the  location'  of  the  quarter-section 
post  affects  a  boundary  of  eight  quarter  sections  and  thirty- 
two  quarter-quarter  sections.  And  in  the  third  place,  high- 
ways are  frequently  laid  out,  and  school  districts  may  be  es- 
tablished with  reference  to  such  boundary  lines.  We  are, 
therefore,  of  the  opinion  the  evidence  was  competent."17 

In  the  Thoen  case,  the  court  admitted  without  objection 
evidence  of  common  repute  in  the  neighborhood  that  the  stake 
set  by  the  surveyor  located  the  corner  correctly.  Also,  the 
court  received  evidence  that  by  common  report,  the  quarter- 
corner  was  right  in  the  center  of  the  highway.  And  it  is  said 
that  a  boundary  line  long  recognized  and  acquiesced  in,  is 
generally  better  evidence  of  where  the  true  line  should  be,  than 
a  survey  made  after  the  original  monuments  have  disap- 
peared.18 

17Thoen  v.  Roche,  57  Minn.  139,  42  Kans.  43,  21  Pac.  807;  Stewart 

58  N.  W.  686,  47  Am.  St.  600.  v.  Carleton,  31  Mich.  270;  Gregory 

18Tarpenning  v.  Cannon,  28  Kans.  v.  Knight,  50  Mich.  61,  14  N.  W. 

665;  Shaffer  v.  Weech,  34  Kans.  700;  Thoen  v.  Roche,  57  Minn. 

595,  9  Pac.  202;  Reinert  v.  Brunt,  139,  58  N.  W.  686,  47  Am.  St.  600. 


417  EVIDENCE  OF  LOCATION  OF  CORNERS  OR  LINES        §    407 

Upon  making  a  resurvey  the  question  is  not  where  an  entirely 
accurate  survey  would  locate  the  lines,  but  where  did  the  orig- 
inal survey  locate  such  lines.  And  it  is  said  upon  that  ques- 
tion, the  best  possible  evidence  is  usually  to  be  found  in  the 
practical  location  of  the  lines  made  at  a  time  when  the  orig- 
inal monuments  were  presumably  in  existence.19 

§  406.  Maps  as  evidence. — It  is  error  to  admit  in  evidence 
a  map  made  by  a  United  States  surveyor  without  the  accom- 
panying field-notes.  Where  the  certificate  of  a  commissioner 
of  the  state  land  office,  attached  to  a  map,  fails  to  state  that 
it  is  a  true  copy  of  any  map  in  his  office,  and  fails  to  give  a 
true  copy  of  the  field-notes  of  the  survey  of  the  property 
represented  by  the  map,  as  provided  by  How.  St.  5243,  the 
map  is  not  admissible  in  evidence.20  This  decision  was  made 
under  the  Michigan  statutes  cited  above  and  would  not  be 
authority  except  under  a  similar  statute.  The  statute  pro- 
vided that  the  certificate  must  show  the  map  to  be  a  true  copy 
of  field-notes,  map,  etc.,  of  the  originals  on  file  and  may  then 
be  used  in  evidence  when  "title  or  boundary  of  any  land"  is  in 
question.  The  certificate  to  the  exhibit  did  not  comply  with 
the  statute. 

§  407.  An  ancient  plan  of  town  from  natural  source. — An 
ancient  plan  of  a  town,  without  date,  much  worn,  purporting 
to  have  been  made  by  one,  P.,  obtained  from  the  possession  of 
one,  G.,  a  surveyor  still  living,  but  an  aged  man  whose  faculties 
were  much  impaired,  and  who,  more  than  thirty  years  before, 
was  town  clerk  of  such  town  and  at  the  time  the  plan  was 
kept  among  the  records  of  the  town,  and  was  much  used  by 
the  inhabitants.  By  the  record,  it  appeared  that  in  1745,  P. 
and  another  were  appointed  to  survey  the  land  into  town  lots, 
and  did  make  such  survey.  Held  that  the  plan  was  admissible 

19Diehl  v.  Zanger,  39  Mich.  601 ;  20Willson  v.  Hoffman,  54  Mich. 
Stewart  v.  Carlton,  31  Mich.  270.  246,  20  N.  W.  37. 


SURVEYING   AND   BOUNDARIES  418 

in  evidence  in  a  case  in  which  the  locations  of  the  lots  and 
lines  of  such  survey  were  in  question.21 

§  408.  Undisputed  line  in  another  town. — An  undisputed 
line  in  another  town  may  be  given  in  evidence  in  establishing 
a  disputed  line  in  the  town  in  question,  where  the  evidence 
shows  the  lines  were  originally  run  to  the  same  corner.  The 
fact  that  the  line  in.  the  other  town  is  undisputed  makes  out  a 
strong  case  for  the  admission  of  evidence  of  its  location  in 
fixing  the  true  location  of  the  other  line.  If  such  line  was 
also  in  dispute  clearly,  the  evidence  would  not  be  admissible.22 
Of  course,  it  should  clearly  appear  that  such  line  was  undis- 
puted and  that  it  was  reputed  to  be  in  the  place  of  the  original 
location. 

§  409.  Location  of  one  line  by  another. — Where  the  loca- 
tion of  a  line  between  two  counties  was  uncertain  and  disputed. 
and  the  line  between  adjoining  lands  coincided  with  the  county 
line,  which  was  claimed  by  both  sides  to  be  a  straight  line, 
evidence  was  admissible  to  show  that  for  a  considerable  dis- 
tance south  of  the  place  where  the  line  was  in  dispute,  owners 
of  land  in  the  two  counties,  whose  lands  were  bounded  by,  the 
county  line,  had  built  fences  up  to  a  certain  line  and  recognized 
it  as  being  the  county  line,  and  had  so  bounded  their  possessions 
for  twenty  years  or  more ;  and  that  the  line  run  between  lands 
of  the  parties  by  processions  was  a  continuation  of  the  line  so 
recognized.28  This,  of  course,  is  a  practical  location  of  the 
line  by  the  parties  in  interest  at  a  time  when  the  original  posts 
were  presumably  in  existence.  As  we  have  seen,  courts  are 
prone  to  disturb  lines  long  abided  by.24 

§  410.  Ancient  fences. — Ancient  fences  built  on  what  were 
supposed  to  be  boundary  lines  of  the  tract  of  land  in  dispute 
and  maintained  for  at  least  thirty  and  probably  fifty  years,  are 

21Gibson  v.  Poor,  21  N.  H.  440,  28Ivey  v.  Cowart,  124  Ga.  159, 
53  Am.  Dec.  216.  52  S.  E.  436,  no  Am.  St.  160. 

22Gibson  v.  Poor,  21  N.  H.  440,          2*Ante  Ch.  XV. 
53  Am.  Dec.  216. 


419  EVIDENCE  OF  LOCATION  OF  CORNERS  OR  LINES        §    411 

held,  in  this  case,  to  fix  the  correct  boundaries,  as  against  mod- 
ern surveys  conflicting  therewith  and  with  each  other.25  Testi- 
mony should  be  given  of  the  correct  original  location  of  the 
line  upon  which  such  fence  is  or  was  built.  If  it  can  be  shown 
that  the  fence  was  built  at  a  time  when  the  original  corners 
were  still  standing,  the  presumption  is  that  it  was  built  on  the 
true  line.  As  to  these  facts  the  testimony  of  those  who  made 
the  original  survey  or  were  present  when  it  was  made,  or  saw 
the  stake  standing  which  marked  the  true  corner,  may  be 
received  as  to  the  location  of  the  fence  on  the  true  line.  It 
has  been  held  that  the  declarations  of  a  surveyor,  since  de- 
ceased, when  made  on  the  ground,  are  competent  evidence  as 
to  the  true  boundary  of  a  tract;  so  also  his  field-notes,  if 
authenticated  otherwise  than  by  his  mere  declarations.26  An 
ancient  survey  of  a  field  or  manor  is  admissible  evidence  of 
its  boundaries.27 

But  the  weight  accorded  to  ancient  fences  of  the  true  line 
between  tracts  of  land  is  not  so  great  where  such  line  was  not 
at  any  time  marked  by  original  monuments.28  Evidence  that 
a  fence  was  built  according  to  stakes  set  by  a  surveyor  who 
made  the  original  plat  and  that  said  fence  has  been  maintained 
on  substantially  the  same  line  for  more  than  forty  years ;  it  was 
held  the  fence  was  built  on  the  true  line.29 

The  courts  have  taken  very  decided  stands  on  the  ancient 
fence  principle.30 

§  411.  Testimony  of  surveyors. — Where  there  is  a  dispute 
as  to  the  boundary,  the  surveyor  who  established  such  boun- 

25Wunnicke  v.  Dederich,  160  Wis.  29Racine  v.  Emerson,  85  Wis.  81, 

462,  152  N.  W.  139-  55  N.  W.  177,  39  Am.  St.  819. 

26Collins  v.  Clough,  222  Pa.  St.  80Toby  v.  Secor,  60  Wis.  310,  19 

472,  71  Atl.  1077,  15  Ann.  Cas.  871.  N.  W.  99;  Welton  v.  Poynter,  96 

2762  J.   P.   661.  Wis.  346,  71   N.  W.   597;   Illinois 

28Wollman  v.  Ruehle,  104  Wis.  Steel  Co.  v.  Budzisz,  139  Wis.  281, 

603,  80  N.  W.  919.  119  N.  W.  935,  121  N.  W.  362. 


§    412  SURVEYING  AND   BOUNDARIES  42O 

dary  may  be  called  as  a  witness  to  identify  the  boundary.81 
Where  a  surveyor  testifies  the  probative  force  of  his  testimony 
is  for  the  jury.32  Testimony  of  a  surveyor  as  to  certain  marks 
and  monuments  made  by  a  former  surveyor  is  not  expert  testi- 
mony but  individual.33  Where  a  surveyor  testifies  he  may 
use  his  notes  to  refresh  his  memory  by  a  reference  to  such 
notes  although  the  survey  was  not  made  according  to  statute.34 
Surveyor  may  testify  to  declarations  made  to  him  by  old  resi- 
dents, pointing  out  a  certain  corner  to  be  at  a  gate  post  then 
standing,  at  a  time  when  he  was  retracing  the  line  running  to 
said  corner,  the  said  old  residents  being  at  the  time  of  the  trial 
deceased.35 

§  412.  Parol  evidence  to  show  boundaries. — Latent  ambig- 
uities may  be  explained  by  parol,  yet  parol  evidence  is  not  ad- 
missible, in  the  absence  of  fraud,  mistake  or  surprise,  to  vary 
in  any  way  the  description  in  a  deed  which  is  clear.86  So 
where  the  description  in  a  deed  is  clear  and  understandable  it 
can  not  be  shown  that  another  tract  of  land  was  intended.37 
Parol  evidence  is  admissible  to  apply  the  description  in  a  deed 
to  the  land  conveyed.38  It  has  been  held  that  parol  evidence 
will  not  be  received  to  show  that  a  marked  tree  is  the  boundary 
line  in  a  case  where  the  line  was  described  in  a  deed  by  courses 
and  distances  and  the  marked  tree  was  not  mentioned  in  the 

deed.39    If  the  calls  of  a  deed  conflict,  extrinsic  evidence  may 

%  • 

"Washington  Rock  Co.  v.  Young,  88Fratt    v.    Woodward,    32    Cal. 

29  Utah  108,  80  Pac.  382,  no  Am.  219,  91  Am.  Dec.  573;  McAfferty 

St  666.  v.  Conover's  Lessee,  7  Ohio  St.  99, 

82Arneson  v.  Spawn,  2   S.  Dak.  7°  Am.  Dec.  57. 

269,   49   N.   W.    1066,  39  Am.   St.  "Benedict  v.  Gaylord,   n   Conn. 

783.  332,  29  Am.  Dec.  299. 

83Barron  v.  Cobleigh,   II   N.   H.  88Summerlin  v.  Hesterly,  20  Ga. 

557,  35  Am.  Dec.  505.  689,   65    Am.   Dec.   639;   Emery  v. 

84Krider  v.  Milner,  99  Mo.  145,  Webster,    42    Maine    204,    66    Am. 

12  S.  W.  461,  17  Am.  St.  549.  Dec.  274. 

85Phillips  v.  Stewart,  133  Ky.  134,  89Wynne  v.  Alexander,  29  N.  Car. 

97  S.  W.  6,  134  Am.  St.  441.  237,  47  Am.  Dec.  326. 


421  EVIDENCE  OF  LOCATION  OF  CORNERS  OR  LINES        §    415 

be  resorted  to,  to  determine  the  conflict  and  show  the  land 
embraced  in  the  description.40 

§  413.  Identify  monument — Ambiguous  description. — 
Parol  evidence  is  often  admissible  to  identify  and  ascertain  the 
locality  of  a  monument  called  for  by  a  description  in  a  deed.41 
Common  reputation  may  be  resorted  to  to  identify  monuments, 
if  of  a  public  or  quasi-public  nature.42  When  the  description 
is  ambiguous,  the  practical  construction  given  it  by  the  parties 
themselves  may  be  shown  as  bearing  on  the  correct  construc- 
tion.43 In  all  such  cases,  the  surveyor  will  be  called  upon  to 
exercise  his  ingenuity  in  determining  the  evidence  which  may 
be  used  to  identify  the  location  of  the  monument  in  dispute. 

§  414.  Original  corners  and  patent  inconsistent. — A  mis- 
take in  the  call  of  a  patent  may  be  corrected,  by  a  reference  to 
the  plat  and  certificate  of  survey,  which  are  evidence  of  the 
original  position  of  the  corners,  and  when  they  can  be  ascer- 
tained they  form  the  boundary,  though  variant  from  the  de- 
scription contained  in  the  patent.44  This  is  a  statement  of  the 
general  rule  in  another  way,  that  if  the  original  corners  or  lines 
can  be  found  either  because  still  standing,  or  by  a  resort  to 
proper  evidence,  they  must  be  adhered  to  by  the  surveyor,  even 
though  inconsistent  with  the  patent  description  or  inaccurate. 

§  415.  Marked  trees — Courses  and  distances — Parol  evi- 
dence.— Marked  trees  on  a  line  or  witnessing  a  corner  should 
control  both  courses  and  distances.45  Natural  objects  called 

40Brand  v.  Daunoy,  8  Mart.  N.  415;  McCoys  v.  Galloway,  3  Ohio 

S.    (La.)    159,    19   Am.   Dec.    176;  282,  17  Am.  Dec.  591. 

Johnson  v.  Archibald,  78  Tex.  96,  43Choate    v.    Burnham,    7    Pick. 

14  S.  W.  266,  22  Am.  St.  27.  (Mass.)  274. 

41Waterman  v.  Johnson,  13  Pick.  44Steele's  Heirs  v.  Taylor,  3  A. 

(Mass.)  267.  K.  Marsh.  (Ky.)  225,  13  Am.  Dec. 

42Griffin  v.   Graham,  8  N.   Car.  151. 

96,  9  Am.  Dec.  619;  Boardman  v.  45Ayers    v.    Watson,    137    U.    S. 

Reed,  6  Pet.  (U.  S.)  328,  8  L.  ed.  584,  34  L.  ed.  803,  u  Sup.  Ct.  201. 


§    4*6  SURVEYING  AND  BOUNDARIES  422 

for  in  a  description  may  be  located  by  parol  testimony.46 
Where  there  are  known  monuments,  courses  and  distances  are 
not  material  and  they  may  be  disregarded.47  Courses  and  dis- 
tances yield  to  fixed  monuments  or  natural  and  located  ob- 
jects.48 Courses  and  distances  yield  to  a  call  for  a  natural 
object  like  a  river,  spring,  or  marked  line.49  Courses  and  dis- 
tances may  be  shortened  or  lengthened  and  courses  varied  so 
as  to  conform  to  natural  monuments  or  objects  called  for.50 

§  416.  General  reputation — Declarations — Private  boun- 
daries.— In  the  state  of  Connecticut,  general  reputation  is 
admissible  for  the  purpose  of  showing  not  only  public  boun- 
daries, but  also  the  boundaries  of  lands  of  individual  pro- 
prietors.51 And  the  rule  was  declared  in  the  action  of  Dag- 
gett  v.  Shaw52  to  be,  "that  the  declarations  of  ancient  persons, 
made  while  in  possession  of  land  owned  by  them,  pointing  out 
the  boundaries  on  the  land  itself,  and  who  are  deceased  at  the 
time  of  trial,  are  admissible  in  evidence,  when  nothing  appears 
to  show  that  they  were  interested  in  thus  pointing  out  their 
boundaries;  and  it  need  not  appear  affirmatively  that  the 
declarations  were  made  in  restriction  of,  or  against,  their  own 

46Blake    v.    Doherty,    5    Wheat.  Hatterman,   146  111.  555,  34  N.   E. 

(U.  S.)  359,  5  L.  ed.  109.  1041. 

47Higuera    v.    United    States,    5  49Newsom    v.    Pryor,    7    Wheat. 

Wall  (U.  S.)  827,  18  L.  ed.  469.  (U.  S.)  7,  5  L.  ed.  382. 

48Bartlett  Land  &  Lumber  Co.  v.  50McIver's   Lessee   v.   Walker,  9 

Saunders,  103  U.  S.  316,  26  L.  ed.  Cranch  173,  3  L.  ed.  694;  Security 

546;    Shipp    v.    Miller,    2    Wheat.  Land  &  Exploration  Co.  v.  Burns, 

(U.  S.)  316,  4  L.  ed.  248;  Security  193  U.  S.  179,  48  L.  ed.  622,  24  Sup. 

Land  &  Exploration  Co.  v.  Burns,  Ct  425 ;  Langdon  v.  New  York,  93 

193  U.  S.  179,  48  L.  ed.  662,  24  Sup.  N.  Y.  129;  Coles  v.  Yorks,  36  Minn. 

Ct.  425;  Reid  v.  Mitchell,  95   Ind.  39i,  31  N.  W.  353. 

401;   Backus   v.    Detroit,    49   Mich.  51Kinney  v.  Farnsworth,  17  Conn. 

1 10,  13  N.  W.  380,  43  Am.  Rep.  447 ;  355- 

Brown  v.  Huger,  21  How.  (U.  S.)  52Daggett     v.     Shaw,     5     Mete. 

305,   16  L.  ed.   125;   Henderson  v.  (Mass.)  223. 


423  EVIDENCE  OF  LOCATION  OF  CORNERS  OR  LINES        §    418 

rights."  This  doctrine  has  been  affirmed.53  It  is  fully  recog- 
nized by  Shaw,  C.  J.,  and  extended  to  declarations  of  a  per- 
son in  possession  under  a  contract  of  purchase.  The  case  of 
Daggett  v.  Shaw  is  cited  approvingly  by  the  court.54 

It  is  held55  that  "the  declaration  of  a  deceased  owner  of 
land,  tending  to  show  that  a  corner  had  been  established  by 
him  and  other  adjoining  owners  is  admissible,  although  the 
declarant  and  witnesses  were  not  on  the  land  at  the  time  it  was 
made  for  the  reason,  it  appearing,  that  the  deceased  declarant, 
had  adequate  knowledge,  and  it  is  the  best  evidence  the  case 
admits  of,  and  upon  the  ground  of  necessity,  and  also  when  it 
is  an  admission  against  the  party's  interest." 

§  417.  Depositions  of  deceased  surveyor  taken  in  other 
case. — It  is  held56  that  "The  deposition  of  a  surveyor  who  ran 
the  boundary  lines  of  a  grant,  taken  in  one  action,  is  admissible 
in  another  action  between  different  parties,  as  hearsay  evi- 
dence, upon  the  location  of  such  lines  after  his  death."  In 
the  case  just  cited,  the  surveyor  had  given  his  deposition  in 
another  action  as  to  the  position  of  the  southern  boundary  of 
the  Sutter  grant,  offered  in  connection  with  the  map  made  by 
him  and  it  was  held  admissible  in  the  action  at  bar.  The  loca- 
tion of  the  line  in  the  former  trial  was  necessary  in  the  latter 
trial.  The  deposition  was  admitted  on  the  ground  of  necessity, 
it  appearing  the  surveyor  was  in  a  position  to  know  the  loca- 
tion of  the  boundary  and  was,  at  the  time  the  declaration  was 
made,  disinterested,  and  now  deceased. 

§  418.  Deceased  surveyor's  ancient  plans,  notes,  etc.,  ad- 
missible.— "A  deceased  surveyor's  ancient  plans,  minutes, 
notes,  or  field-book  clearly  describing  and  identifying  the  lots 

53Bartlett    v.    Emerson,    7    Gray          54Royal    v.    Chandler,   83    Maine 

(Mass.)    174;   Wood   v.   Foster,   8  150,  21   Atl.  842. 
Allen.    (Mass.)    24,    85    Am.    Dec.          55Smith  v.  Forrest,  49  N.  H.  230. 
671 ;     Niles    v.     Patch,     13     Gray         56Morton  v.  Folger,  15  Cal.  275. 
(Mass.)   254. 


§    4:9  SURVEYING   AND   BOUNDARIES  424 

and  bounds  in  controversy  are  admissible  in  evidence."57 
This  doctrine  was  affirmed.58  The  return  and  map  of  the 
deputy  surveyor  who  made  the  survey  are  competent  evidence 
in  a  case  where  a  boundary  is  in  dispute.59  Ancient  maps  and 
surveys  are  evidence  to  elucidate  and  ascertain  boundaries  and 
fixed  monuments.60  In  the  case  last  cited,  a  party  claimed  to 
what  was  known  as  the  "Taylor  Line."  On  the  trial  he  of- 
fered a  plan  dated  forty-five  years  previously,  proved  to  have 
been  in  the  possession  of  a  former  owner  who  claimed  by  it 
thirty-five  years  before,  and  proved  also  to  be  in  the  hand- 
writing of  Taylor,  who  was  a  surveyor,  and  was  dead.  Held 
to  be  proper  evidence  of  boundary. 

In  these  cases  the  court  will  look  into  the  source  from  which 
the  ancient  survey,  plan,  or  document  came  and  will  only  re- 
ceive such  documents  when  they  come  from  a  place  where  they 
might  naturally  be  found.  In  a  Vermont  case,61  it  was  held 
that  the  original  survey  plan  in  connection  with  evidence  that 
it  was  passed  from  the  defendant's  grantor  to  the  defendant  at 
the  time  he  conveyed  the  land,  was  proper  evidence  of  claim 
of  title,  and,  as  the  surveyor  was  deceased,  it  was  admissible 
the  same  as  an  oral  declaration  by  the  surveyor,  to  the  same 
effect  as  the  survey  would  have  been.62 

§  419.  Declarations  of  interested  persons  since  deceased. — 
H  and  K,  deceased,  were  well  acquainted  with  the  location  of 
the  division  line  in  dispute.  H  had  owned  both  of  the  lots, 
and  K  had  owned  one  of  them.  Neither  was  interested  to 
misrepresent  as  to  the  true  location  of  said  line.  Held  their 
declarations  concerning  the  location  of  said  line,  made  upon 
or  near  it,  were  admissible  in  evidence,  although  it  might  be 
fairly  claimed  that  they  were  interested  in  the  land  at  the  time 

"Smith  v.  Forrest,  49  N.  H.  230.  60McCausland  v.  Fleming,  63  Pa. 

58Lawrence    v.    Tennant,    64    N.  36. 

H.  532,   15  Atl.  543.  61Kidder  v.  Kennedy,  43  Vt.  717. 

59Curtis  v.  Aaronson,  49  N.  J.  L.  62Child  v.  Kingsbury,  46  Vt.  54; 

68,  7   Atl.  886,   60  Am.   Rep.   584.  Oatman  v.  Andrew,  43  Vt.  466. 


425  EVIDENCE  OF  LOCATION  OF  CORNERS  OR  LINES       §   4IQ 

the  declarations  were  made.63  It  is  said64  that,  "Upon  the 
question  of  ancient  boundaries  or  corners,  the  declarations  of 
deceased  persons  as  to  such  boundaries  or  corners  may  be 
given  in  evidence,  provided  such  persons  had  peculiar  means 
of  knowing  the  fact  in  question,  and  the  declarations  are  not 
liable  to  the  suspicion  of  bias  from  interest.  Such  are  the 
declarations  of  a  surveyor  and  chain-carriers  engaged  on  the 
original  survey,  the  owner  of  the  tract,  or  of  an  adjoining  tract 
calling  for  the  same  boundaries,  tenants,  processioners,  and 
others  possessed  of  accurate  information  of  the  fact." 

The  Texas  court65  held  that,  "General  reputation  in  regard 
to  the  boundary  lines  of  an  ancient  survey,  formed  long  before 
the  suit  in  which  it  is  offered  in  evidence  was  begun,  and 
which  boundary  was  of  sufficient  interest  to  have  been  the 
subject  of  note  and  comment  in  the  neighborhood,  is  admissible 
in  evidence."  This  is  on  the  theory  that  government  corners 
and  lines  are  of  practical  interest  to  many  persons  owning  land 
in  the  vicinity  where  those  corners  or  lines  are  located. 

«3Child  v.  Kingsbury,  46  Vt.  47.          ''Clark  v.  Hills,  67  Tex.   141,  2 
64Fry  v.  Stowers,  92  Va.  13,  22      S.  W.  356. 
S.  E.  500. 


CHAPTER  XVII 

BOUNDARIES    BETWEEN    STATES    AND    NATIONS 

Sec.  Sec. 

420.  Generally.  423.  Jurisdiction      of      rivers      on 

421.  Boundaries   between   states.  borders  of  states. 

422.  Jurisdiction    of    islands.  424.  Jurisdiction  between   states. 

425.     Boundary  and  ownership. 

§  420.  Generally. — The  boundaries  between  nations  are 
usually  fixed  by  treaty,  and,  where  such  is  the  case,  that  docu- 
ment should  be  resorted  to  in  determining  such  boundaries. 
But  even  when  the  limits  are  so  fixed,  disputes  as  to  the  true 
boundary  frequently  occur.  This  was  the  case  as  to  that  part 
of  the  boundary  between  the  United  States  and  Great  Britain 
bordering  on  the  state  of  Maine.  For  many  years  this  was 
the  subject  of  a  bitter  contention  between  the  two  countries, 
and  it  was  not  settled  until  Daniel  Webster,  as  Commissioner 
on  the  part  of  the  United  States,  and  Lord  Ashburton,  on  the 
part  of  Great  Britain,  after  taking  much  evidence,  and  after 
the  most  careful  investigation  permanently  fixed  and  marked 
that  boundary. 

So  also,  the  northwest  boundary  between  the  United  States 
and  Great  Britain  was  the  subject  of  a  warm  dispute  for  many 
years  until  it  was  finally  compromised,  the  line  fixed  and  per- 
manently marked,  by  commissioners  of  the  two  countries. 
Where  the  treaty  does  not  mark,  the  exact  boundary  between 
nations,  it  is  generally  the  subject  of  much  discussion  after- 
wards. The  meaning  of  the  language  used  by  the  contracting 
parties  is  subject  to  different  constructions,  and  it  is  often 
necessary  to  take  and  consider  much  evidence  and  refer  to 
plans  of  extensive  surveys  by  both  countries. 

426 


427  BOUNDARIES  BETWEEN  STATES  AND  NATIONS        §    421 

§  421.  Boundaries  between  states. — The  boundaries  of  the 
original  thirteen  states  were  not  always  fixed  with  exactness. 
They  were  generally  the  subject  of  a  grant  or  grants  from  the 
sovereign  of  England  or  other  country.  Often  those  grants 
were  very  imperfect  and  disputes  have  arisen  between  those 
states  as  to  the  true  boundary.  The  federal  courts  have  been 
called  upon  to  construe  those  old  grants  and  determine  such 
boundaries.  That  court  has  held  that  evidence  as  to  which 
state  had  exercised  jurisdiction  of  the  territory  in  dispute  may 
be  received  and  considered.1 

The  boundaries  of  states  other  than  the  thirteen  original 
states  are  generally  fixed  by  the  enabling  act  of  Congress,  ad- 
mitting such  state  as  a  member  of  the  Union.  In  some  states 
the  boundary  as  so  fixed  will  be  found  in  the  statutes  of  the 
state — not  as  part  of  the  state  laws — but  as  a  matter  of  .infor- 
mation, being  a  copy  of  the  enabling  act.2 

As  an  illustration  of  such  acts,  we  here  quote  from  the  en- 
abling act  for  Wisconsin,  the  language  used  with  reference  to 
its  boundaries : 

"Beginning  at  the  northeast  corner  of  the  state  of  Illinois, 
that  is  to  say,  at  a  point  in  the  center  of  Lake  Michigan,  where 
the  line  of  forty-two  degrees  and  thirty  minutes  of  north  lati- 
tude crosses  the  same ;  thence  running  with  the  boundary  line 
of  the  state  of  Michigan  through  Lake  Michigan,  Green  Bay, 
to  the  mouth  of  the  Menomonie  river;  thence  up  the  channel 
of  said  river  to  the  Brule  river;  thence  up  said  last  mentioned 
river  to  Lake  Brule ;  thence  along  the  southern  shore  of  Lake 
Brule  in  a  direct  line  to  the  center  of  the  channel  between 
Middle  and  South  Islands,  in  the  Lake  of  the  Desert,  thence 
in  a  direct  line  to  the  headwaters  of  the  Montreal  river,  as 
marked  upon  the  survey  made  by  Captain  Cramm ;  thence  down 
the  main  channel  of  the  Montreal  river  to  the  middle  of  Lake 

Missouri  v.  Kentucky,  78  U.  S.  2Wis.  Stat.  (1898)  48;  Minn. 
(11  Wall.)  395,  20  L.  ed.  116.  Stat.  (1913)  2074. 


§   422  SURVEYING  AND  BOUNDARIES  428 

Superior;  thence  through  the  center  of  Lake  Superior  to  the 
mouth  of  the  Saint  Louis  river;  thence  up  the  main  channel  of 
said  river  to  the  first  rapids  in  the  same,  above  the  Indian 
village,  according  to  Nicollet's  map;  thence  due  south  to  the 
main  branch  of  the  river  Saint  Croix ;  thence  down  the  main 
channel  of  the  said  river  to  the  Mississippi;  thence  down  the 
center  of  the  main  channel  of  that  river  to  the  northwest  corner 
of  the  state  of  Illinois;  thence  due  east  with  the  northern 
boundary  of  the  state  of  Illinois  to  the  place  of  beginning  as 
established  by  "An  act  to  enable  the  people  of  the  Illinois  ter- 
ritory to  form  a  constitution  and  state  government,  and  for 
the  admission  of  such  state  into  the  Union  on  an  equal  footing 
with  the  original  states,"  approved  April  eighteenth,  eighteen 
hundred  and  eighteen." 

§  422.  Jurisdiction  of  islands. — "And  be  it  further  enacted, 
That,  to  prevent  all  disputes  in  reference  to  the  jurisdiction  of 
islands  in  the  said  Brule  and  Menomonie  rivers,  the  line  be  so 
run  as  to  include  within  the  jurisdiction  of  Michigan,  all  the 
islands  in  the  Brule  and  Menomonie  rivers  (to  the  extent  in 
which  said  rivers  are  adopted  as  a  boundary),  down  to  and 
inclusive  of  the  Quincsec  falls  of  the  Menomonie;  and  from 
thence  the  line  shall  be  so  run  as  to  include  within  the  jurisdic- 
tion of  Wisconsin  all  the  islands  in  the  Menomonie  river, 
from  the  falls  aforesaid  down  to  the  junction  of  said  river 
with  Green  Bay:  provided,  that  the  adjustment  of  boundary, 
as  fixed  in  this  act,  between  Wisconsin  and  Michigan,  shall 
not  be  binding  on  Congress  unless  the  same  shall  be  ratified 
by  the  state  of  Michigan,  on  or  before  the  first  day  of  June, 
one  thousand  eight  hundred  and  forty-eight." 

§  423.  Jurisdiction  of  rivers  on  borders  of  state. — "And  be 
it  further  enacted.  That  the  said  state  of  Wisconsin  shall  have 
concurrent  jurisdiction  on  the  Mississippi  and  all  other  rivers 
and  waters  bordering  on  the  said  state  of  Wisconsin,  so  far 
as  the  same  shall  form  a  common  boundary  to  said  state  and 


429  BOUNDARIES  BETWEEN  STATES  AND  NATIONS        §    424 

any  other  state  or  states  now  or  hereafter  to  be  formed  or 
bounded  by  the  same,  and  said  river  and  waters,  and  the  navi- 
gable waters  leading  into  the  same,  shall  be  common  highways 
and  forever  free,  as  well  to  the  inhabitants  of  said  state  as  to 
all  other  citizens  of  the  United  States,  without  any  tax,  duty, 
impost,  or  toll  therefor." 

§  424.  Jurisdiction  between  states. — The  courts  will  take 
judicial  notice  of  the  boundaries  of  the  different  states.  The 
states  of  Illinois  and  Michigan  are  adjoining  states,  the  boun- 
dary line  being  in  the  center  of  Lake  Michigan.3  Where  a 
body  of  water  is  the  boundary  between  two  states,  unless  a 
different  boundary  is  fixed  by  treaty  or  by  statute,  the  center 
of  such  body  of  water  or  the  thread  of  the  stream,  if  a  river,  is 
the  boundary  between  the  two  states.  The  district  court  of 
the  eastern  district  of  Wisconsin  has  no  jurisdiction  of  an 
indictment  for  an  assault  committed  on  a  vessel  on  Lake  Huron 
within  the  boundary  of  the  eastern  district  of  the  state  of 
Michigan.*  The  term,  "high  seas,"  as  used  in  Sec.  5346  U. 
S.  Stat.  is  applicable  to  the  open  uninclosed  waters  of  the 
Great  Lakes,  between  which  the  Detroit  River  is  a  connecting 
stream.  The  courts  of  the  United  States  have  jurisdiction  to 
try  a  person  for  an  assault  committed  on  a  vessel  belonging  to 
a  citizen  of  the  United  States,  when  such  vessel  is  in  the  De- 
troit River,  out  of  the  jurisdiction  of  any  state,  and  within 
the  territorial  limits  of  the  Dominion  of  Canada.5  The  Great 
Lakes  are  "high  seas"  within  the  meaning  of  the  law,  and  it  is 
said6  that,  "The  Great  Lakes  possess  every  essential  character- 
istic of  seas.  They  are  of  large  extent  in  length  and  breadth ; 
they  are  navigable  the  whole  distance  in  either  direction  by  the 
largest  vessels  known  to  commerce;  objects  are  not  distin- 

8Thorson  v.  Peterson,  9  Fed.  519.      U.  S.  249,  37  L.  ed.  1071,  14  Sup. 
4United    States    v.    Peterson,   64      Ct.    109. 

Fed.   145.  6United  States  v.  Rodgers,  150  U. 

5United    States   v.   Rodgers,    150      S.  256,  37  L.  ed.  1074,  14  Sup.  Ct. 

109. 


§    425  SURVEYING   AND   BOUNDARIES  430 

guishable  from  the  opposite  shores;  they  separate,  in  many 
instances,  states,  and  in  some  instances  constitute  the  boundary 
between  independent  nations,  and  their  waters,  after  passing 
long  distances,  debouch  into  the  ocean?"7 

A  crime  committed  on  the  Mississippi  river,  adjacent  to  the 
state  of  Wisconsin,  may  be  tried  in  a  county  of  such  state 
bordering  on  such  river.8 

It  is  plain  that  in  the  case  of  United  States  v.  Peterson,9  that 
the  crime  was  committed  within  the  state  of  Michigan,  i.  e., 
on  that  part  of  Lake  Huron  lying  between  the  center  line 
thereof  and  the  state  of  Michigan,  and,  therefore,  the  Dis- 
trict Court  of  the  Eastern  District  of  Michigan  had  jurisdic- 
tion, and  not  the  District  Court  of  the  Eastern  District  of 
Wisconsin. 

§  425.  Boundary  and  ownership. — The  various  states  own 
the  bed  of  the  Great  Lakes  to  the  center  line  thereof  subject 
to  the  right  of  the  general  public  to  navigate  such  waters.10 
This  is  the  general  rule,  which  may  be  modified  by  statute, 
treaty,  or  cession.  Lake  Michigan,  which  lies  wholly  within 
the  territory  of  the  United  States,  is  not  a  "high  sea,"  in  the 
sense  that  it  is  open  and  uninclosed  and  a  free  highway  of 
adjoining  nations  or  peoples.  It  is  under  the  exclusive  domain 
of  the  United  States,  and  is  free  to  the  commerce  of  other 
nations,  not  by  nature,  but  only  by  the  grace  of  our  govern- 
ment.11 The  sovereignty  of  Wisconsin  extends  to  the  center 
line  of  Lake  Michigan  and  its  laws,  so  far  as  they  do  not  con- 
flict with  the  federal  laws,  are  operative  within  the  boundary 
of  the  state.  The  usual  three  mile  limit,  as  applied  to  the  "high 

^Genesee  Chief  12  How.   (U.  S.)  10Illinois  Cent.  R.  Co.  v.  Illinois, 

443.   13  L.  ed.   1058.  146  U.  S.  387,  36  L.  ed.  1018,  13 

8State    v.    Cameron,    2     Chand.  Sup.  Ct.  no. 

(Wis.)   172.  11Bigelow  v.  Nickerson,  70  Fed. 

9United    States    v.    Peterson.   64  113,  30  L.  R.  A.  336. 
Fed.  145. 


431  .BOUNDARIES  BETWEEN  STATES  AND  NATIONS        §    425 

seas,"  does  not  restrict  the  sovereignty  of  the  several  states 
bordering  on  the  Great  Lakes.12 

So  much  of  Lake  Michigan,  as  is  included  by  lines,  one 
running  north  from  the  point  where  our  eastern  boundary 
strikes  the  southern  boundary  of  the  lake  to  a  point  in  the  mid- 
dle of  the  lake,  in  north  latitude  42  degrees  and  30  minutes, 
and  thence  west  along  that  parallel  to  the  western  border  of 
the  lake,  is  within  the  limits  of  Illinois.13  The  northern 
boundary  of  the  state  of  Ohio  is  the  line  between  the  United 
States  and  Canada,  as  fixed  by  treaty  and  established  by  act 
of  Congress.14  It  is  the  rule  that  where  a  river  is  the  boundary 
between  two  states  and  there  is  no  agreement  respecting  it, 
each  holds  to  the  middle  of  the  main  channel.15  The  boundary 
of  Kentucky  extends  to  low-water  mark  only  on  the  western 
side  of  the  Ohio,  and  it  does  not  cover  an  island  on  the  western 
or  N.  W.  bank,  separated  from  the  main  land  by  a  channel.16 

Georgia  ceded  to  United  States  in  1802,  all  the  land  "west  of 
a  line,  beginning  on  the  western  bank  of  the  Chattahoochie 
river"  and  "running  thence  up  the  said  river  Chattahoochie, 
and  along  the  western  bank  thereof."  It  was  held  in  constru- 
ing this  language  that  Georgia  retained  the  bed  of  the  river 
as  far  as  the  line  marked  by  the  running  water,  or  in  other 
words,  to  the  dry  land  on  the  west  bank.17 

Wolf  Island  in  the  Mississippi,  opposite  Kentucky  and 
Missouri,  is  a  part  of  the  state  of  Kentucky,  and  not  a  part  of 
Missouri.  Settled  by  testimony  of  witnesses  as  to  which  state 
exercised  jurisdiction :  as  to  where  the  main  channel  of  the 
Mississippi  river  had  been  when  the  boundary  between  the 

12Bigelow  v.  Nickerson,  70  Fed.  ing  v.  Kennedy,  4  J.  J.  Marsh,  Ky. 

113,  30  L.  R.  A.  336.  155- 

13Norway  v.  Jensen,  52  111.  373.  16Handly  v.  Anthony  18  U.  S.  (5 

14Edson  v.  Crangle,  62  Ohio  St.  Wheat.)  374,  5  L.  ed.  113. 

62,  56  N.  E.  647.  "Howard  v.  Ingersoll,  54  U.  S. 

15Handly  v.   Anthony,   18   U.   S.  (13  How.)  381,  14  L.  ed.  189. 
(5  Wheat.)  374,  S  L-  ed.  113;  Flem- 


§   425  SURVEYING  AND  BOUNDARIES  432 

states  was  fixed :  by  the  character  of  the  soil  and  trees  on  the 
Missouri  and  Kentucky  sides  respectively  as  compared  with 
that  of  island:  and  by  this  natural  change  in  the  channel  by 
washing.18  Virginia  conveyed  to  United  States  territory 
bounded  in  part  as  follows :  "to  the  territory  or  tract  of  coun- 
try within  the  limits  of  the  Virginia's  charter  situate,  lying 
and  being  to  the  northwest  of  the  river  Ohio."  Under  this 
deed  boundary  was  fixed  at  low-water  mark,  as  it  then  existed, 
on  the  north  side  of  that  river.  Held  that  such  line  now  re- 
mains the  boundary  between  Indiana  and  Kentucky.19 
Where  the  middle  of  a  river  is  the  boundary  between  two 
states,  that  boundary  follows  any  changes  in  the  stream  by 
imperceptible  means.20  The  "middle  of  the  Mississippi  river," 
"the  center  of  the  main  channel  of  that  river ;"  the  "middle  of 
the  main  channel  of  the  Mississippi  river"  used  in  the  enabling 
acts  admitting  Illinois,  Wisconsin,  Missouri,  and  Iowa  into 
the  Union,  are  all  synonymous  terms  and  mean  the  "main 
navigable  channel."21 

The  state  of  Delaware  within  the  "twelve  mile  circle"  ex- 
tends across  the  Delaware  river  to  low- water  mark  on  the 
Jersey  side  of  that  river.22 

Where  a  state  has  consistently  held  and  exercised  jurisdic- 
tion of  certain  islands  for  many  years  it  will  be  evidence  of 
the  construction  of  parties  of  the  language  of  the  grants.28 
The  "middle  of  the  main  channel"  of  the  Mississippi  river 
means  what  it  says  where  there  are  two  channels  and  the  boun- 
dary between  states  would  be  the  middle  of  the  larger  chan- 
nel.24 Where  the  boundary  line  is  "the  middle  of  the  channel" 

18Missouri  v.  Kentucky,  78  U.  S.  21Iowa  v.  Illinois,  147  U.  S.  i,  37 

(n  Wall.)  395,  20  L.  ed.  116.  L,  ed.  55,  13  Sup.  Ct  239. 

"Indiana  v.  Kentucky,  136  U.  S.  22Re  Pea  Patch  Island,  Fed.  Cas. 

479,  34  L.  ed.  329,  10  Sup.  Ct.  1051,  No.   18311    (i   Wall.  Jr.  Append.) 

20Nebraska   v.   Iowa,    143   U.    S.  28Keyser  v.   Coe,  Fed.   Cas.  No. 

359,  36  L.  ed.  186,  12  Sup.  Ct.  396.  7750  (9  Blatchf.  32.) 

24Cessill  v.   State,  40  Ark.  501. 


433  BOUNDARIES  BETWEEN  STATES  AND  NATIONS        §    425 

of  a  bay  or  harbor,  the  thread  of  the  deepest  water  is  not  meant, 
but  the  space  within  which  boats  can  and  do  usually  pass.25 

The  boundary  between  Iowa  and  Illinois  is  the  middle  of 
the  principal  channel  of  the  Mississippi  river.26  The  state  of 
Ohio,  on  the  side  bounded  by  the  Ohio,  extends  to  ordinary 
low-water  mark  on  the  Ohio  side  of  that  river.27 

The  boundary  between  New  York  and  New  Jersey,  south 
of  the  4 ist  degree  of  north  latitude,  is  the  middle  of  the 
Hudson  river,  of  New  York  Bay,  of  the  waters  between  Staten 
Island  and  New  Jersey,  and  of  Raritan  Bay  to  the  sea,  but 
islands  in  these  waters  and  lying  west  of  the  middle  thereof 
belong  to  the  state  of  New  York.28 

25Rowe  v.  Smith,  51  Conn.  266,  "Booth  v.  Shepherd,  8  Ohio  St. 

50  Am.  Rep.  16.  243. 

26Keokuk  &  H.  B.  Co.  v.  People,  28People  v.  Central  Ry.  Co.,  42 

145  111.  596,  34  N.  E.  482.  N.  Y.  283. 


CHAPTER  XVIII 


THE  MEANING  OF  WORDS  USED  IN  DESCRIPTIONS 


Sec,  Sec. 

426.  Generally.  444. 

427.  Valid  and  effective.  445. 

428.  False     and     inconsistent    de-       446. 

scriptions.  447. 

429.  Words    may   be    rejected    as 

surplusage.  448. 

430.  Construed       most      strongly      449. 

against  grantor. 

431.  Construction  should  be  equit-      450. 

able — Not  technical.  451. 

432.  Deed  should  have  reasonable      452. 

construction. 

433.  Reference    to    other    instru-      453. 

ments. 

434.  Intent   gathered    from   entire      454. 

grant. 

4.35.    Latent     ambiguity     explained      455. 
by  parol  testimony.  456. 

436.  Precise  and  general   descrip- 

tions   irreconcilable.  457. 

437.  Retain  description  which  best      458. 

subserves    intention.  459. 

438.  Long     occupation     of     great 

weight.  460. 

439.  Inconsistent    descriptions. 

440.  Town  plats  illegally  recorded      461. 

or  not   recorded. 

441.  Boundary  recognized  by  par-      462. 

ties. 

442-     Parol  evidence  of  declarations       463. 
of  covenantor. 

443.     "Beginning  at'*  and   "Bound- 
ing on  land  of  B." 

434 


Running  to  a  known  line. 

"Northerly"  means  north. 

Deed  referring  to  plan. 

Contents  yield  to  certain 
boundaries. 

Line  center  of  highway. 

Highway  not  mentioned  in 
deed. 

Laying    off   given    quantity. 

The  calls  of  an  entry. 

May  discard  less  important 
calls. 

Quantity  a  leading  factor  in 
determining  boundary. 

Adhere  to  quarter  line  as 
more  certain. 

Private  way  a  boundary. 

Apportion  excess  on  whole 
line. 

Center  of  street  the  boundary. 

Invalid  plat. 

Adjoining  property  may  be 
consulted. 

Monuments  control  over 
quantity. 

Government  plan  and  quant- 
ity aid  construction. 

Corners  as  actually  estab- 
lished to  govern. 

Government    patent    part    of 

description. 


435  THE  MEANING  OF  WORDS  USED  IN  DESCRIPTIONS      §    426 


Sec.  Sec. 

464     Variance      in      measurement-      490. 
Presumed   in   whole   line. 

465.  Extrinsic  evidence  to  explain      491. 

calls. 

466.  Referring     to     other     instru-      492. 

ment 

467.  Evident  intention  governs.  493. 

468.  Length  of  outer  line  control- 

ling factor.  494- 

469.  No   other   land  owned   helps 

out. 

470.  Can    surveyor    locate? 

471.  Inquiry  based  on  land  marks. 

472.  Meanings  of  technical  terms      495. 

help.  496. 

473.  Rejecting  part  of  description. 

474.  General   description*  aided  by 

evidence  aliunde. 

475.  Acts    of    parties    may    deter-      497. 

mine  tract. 

476.  Plat    governs    as    to    descrip-      498. 

tion. 

477.  Inconsistent  calls.  499. 

478.  Description   by   lots    rejected. 

479.  Invalid  plat  referred  to.  500. 

480.  Quantity  supports  call  taken.       501. 

481.  Construed      most      strongly 

against  grantor.  502. 

482.  Parties     presumed     to     make 

valid  deed.  503. 

483.  Particular     words     control 

general.  504. 

484.  Granting  clause  must  prevail 

against  grantor.  505. 

485.  Plat    part    of    description    in 

deed  prevails.  506. 

486.  "Along  or  upon  a  road." 

487.  Construction     of     description 

under    California    statutes.      507. 

488.  Course  and   distance  may  be 

rejected   as   erroneous.  5°8- 

489.  Which  bank  of  slough  meant 

— Surrounding    c  i  r  c  u  in- 
stances. 509. 


Lines  actually  run  and  marked 
on  the  ground  control. 

Call  for  one-half  of  Creek  or 
down  center  of  creek. 

Evidence  of  natural  features 
to  establish  boundary  line. 

East  half  of  tract,  containing 
fifty  acres. 

A  fractional  part  of  govern- 
ment subdivision  usually 
means  that  fractional  part 
of  the  widths  of  that  sub- 
division. 

What  distance  to  take. 

Northwest  corner  of  lot 
means  corner  of  lot — Not 
corner  of  intersection  of 
center  of  street. 

To  a  tree  on  bank  of  river ; 
thence  down  river,  etc. 

Bounded  by  a  navigable 
river. 

Conflict  of  descriptions  in 
deeds  from  same  person. 

Tract  bounded  by  river. 

Can  claim  actual  measure- 
ment only. 

Tract  bounded  on  a  private 
way. 

Private  grant  interpreted 
favorable  to  grantee. 

Meaning  of  words  in  deed — 
"To  the  pond,  etc." 

When  the  construction  of  a 
deed  is  doubtful. 

Boundary  between  riparian 
owners  a  fresh  water 
stream. 

Monuments  may  yield  to 
courses  and  distances. 

Low-water  mark — Metes  and 
bounds  —  Monuments — 
Courses. 

Bayou  may  be  navigable  river. 


§    426  SURVEYING  AND  BOUNDARIES  436 

§  426.  Generally. — One  of  the  most  important  duties  the 
surveyor  is  called  upon  to  perform  in  connection  with  his 
work,  and  the  attorney  in  advising  his  client,  is  as  to  the  con- 
struction or  meaning  to  be  given  to  the  words  used  by  the 
grantor  or  maker  of  an  instrument,  containing  a  description 
of  property  to  be  surveyed  or  under  consideration.  Not  infre- 
quently the  surveyor  is  confronted  with  such  a  question,  in 
the  country,  many  miles  from  his  office.  He  has  no  authority 
to  consult,  and  must  make  his  decision,  more  or  less  in  the 
dark,  so  to  speak.  For  this  reason,  the  author  has  deemed  it 
most  advisable  to  assemble  the  more  important  rules  of  con- 
struction applicable  to  such  instruments  and  cite  authorities 
of  the  courts  sustaining  such  principles. 

No  effort  will  be  attempted  in  this  chapter  to  be  exhaustive 
in  the  citations  of  the  rulings  of  the  various  courts  but  at  least 
one  citation  to  each  principle  or  rule  of  construction  will  be 
made.  The  treatment  of  the  subject  will  be  ample  to  enable 
the  surveyor  to  act  with  intelligence  in  most  cases.  Using  the 
citations  given  as  a  basis,  the  attorney  can  go  into  the  subject 
as  extensively  as  he  may  desire. 

§  427.  Valid  and  effective. — Instruments  will  be  so  con- 
strued as  to  render  them  valid  and  effective,  rather  than  void 
and  ineffective.  It  will  be  presumed  a  party  signing  a  deed 
or  other  instrument  intended  to  make  a  valid  one  and  so 
become  effective.1 

§  428.  False  and  inconsistent  descriptions. — Where  one 
part  of  a  description  in  a  deed  is  false  and  impossible,  but,  by 
rejecting  that  part,  a  perfect  description  remains,  such  false 
and  impossible  part  should  be  rejected  and  the  deed  held  good.2 

§  429.  Words  may  be  rejected  as  surplusage.— Where  the 
word  "west"  was  used  referring  to  the  range,  instead  of 
"east,"  it  may  be  rejected  as  surplusage,  especially  where  the 

1Anderson  v.  Baughman,  7  Mich.  2Anderson  v.  Baughman,  7  Mich, 
69,  74  Am.  Dec.  699.  69,  74  Am.  Dec.  699. 


437          TH]S  MEANING  OF  WORDS  USED  IN  DESCRIPTIONS      §    434 

proper  county  is  given  and  sufficient  remains  to  identify  the 
land  with  certainty.3 

§  430.  Construed  most  strongly  against  grantor. — Where 
a  deed  admits  of  two  constructions,  it  will  be  construed  ac- 
cording to  that  construction  which  makes  most  strongly 
against  the  grantor.* 

§  431.     Construction  should  be  equitable — Not  technical. — 

All  reasonable  inferences  of  construction  should  be  against 
the  position  which  rests,  not  on  equities,  but  on  mere  techni- 
calities.5 

§  432.  Deed  should  have  reasonable  construction. — A  deed 
should  be  given  a  reasonable  construction,  as  viewed  in  the 
light  of  surrounding  circumstances,  and  a  deed  conveying  a 
"right  of  way  of  an  alley/'  implies  a  passage  leading  a  way 
from  the  land  conveyed,  and  not  a  mere  open  space  back  of  the 
lot.6 

§  433.  Reference  to  other  instruments. — A  mortgage  of 
mill  property  conveyed  seven  different  parcels  of  land,  none 
of  which  were  described  by  metes  and  bounds,  but  all  by  a 
reference  to  other  deeds.  Held  that  all  of  the  deeds  referred  to 
were  to  be  considered  in  the  light  of  circumstances  and  that 
the  mortgage  conveyed,  when  so  considered,  the  entire  mill 
privileges.7 

§  434.  Intent  gathered  from  entire  grant. — Ordinarily  the 
intent  which  is  effective  in  a  grant  is  the  intent  expressed  in 
the  language  of  the  grant,  and  such  intent  is  ascribed  by  giv- 
ing suitable  effect  to  all  the  words  of  the  grant,  read  in  the 
light  of  the  circumstances  attending  the  transaction,  the  situa- 
tion of  the  parties,  the  state  of  the  country  and  the  estate 
granted,  such  as  its  condition  and  occupation.8 

3Du  Pont  v.  Davis,  30  Wis.  170.  7Coogan    v.    Burling    Mills,    124 

4Alton  v.  Illinois  Trans.  Co.,   12  Mass.  390. 

111.  38.  8Proctor  v.  Maine  Cent.  Ry.  Co. 

5Johnson  v.  Ballou,  28  Mich.  379.  96  Maine  458,  52  Atl.  933 ;  Herrick 

6McConnell  v-  Rathbun,  46  Mich.  v.  Hopkins,  23  Maine  217. 
303. 


§    435  SURVEYING   AND   BOUNDARIES  438 

§  435.  Latent  ambiguity  explained  by  parol  testimony. — 
It  is  the  duty  of  the  court  to  give  meaning  to  a  deed  so  far  as 
the  intention  of  the  parties  can  be  elicited  therefrom ;  but  the 
doubt  in  the  application  of  the  descriptive  portion  of  a  deed 
to  external  objects,  usually  arises  from  what  is  called  latent 
ambiguity,  which  has  its  origin  in  parol  testimony  and  must 
necessarily  be  solved  in  the  same  manner.  By  resorting  to 
such  testimony  the  meaning  is  made  intelligible.9 

§  436.  Precise  and  general  descriptions  irreconcilable. — If 
there  be  a  precise  and  perfect  description,  showing  that  the 
parties  actually  located  the  land  upon  the  earth,  and  another, 
general  in  its  terms,  and  they  can  not  be  reconciled,  the  latter 
should  yield  to  the  former.10 

§  437-  Retain  description  which  best  subserves  intention. 
— Where  the  boundaries  mentioned  in  a  deed  are  inconsistent, 
those  are  to  be  retained  which  best  subserve  the  prevailing  in- 
tention as  manifested  on  the  face  of  the  instrument.11 

§  438.  Long  occupation  of  great  weight. — Long  occupation 
of  the  premises  pursuant  to  the  uncertainly  expressed  boun- 
dary, should  have  much  influence  in  the  construction  of  the 
deed  containing  the  uncertain  description.12 

§  439.  Inconsistent  descriptions. — A  father  devised  to  one 
of  his  daughters  the  S.  3/4  of  the  S.  1/2  of  the  S.  1/2  of  a 
specified  quarter-section  and  further  described  it  as  containing 
fifteen  acres  and  being  fifteen  rods  wide  by  one  hundred  and 
sixty  long.  There  was  a  similar  devise  to  another,  and  a  third 
was  to  have  a  strip  twelve  and  one-half  rods  wide  and  contain- 
ing twelve  and  one-half  acres.  There  were  three  remaining 
daughters  who  were  to  receive  the  "residue  share  and  share 
alike."  If  the  devises  were  construed  as  giving  the  first  two 
thirty  acres  each,  there  would  have  been  no  residue  for  the 

»Reed  v.  Proprietor  of  Locks  &  10Herrick  v.  Hopkins,  23  Maine 
Canals,  8  How.  (U.  S.)  274,  12  L.  217;  Ricker  v.  Barry,  34  Maine  116. 
ed.  1077.  "Gates  v.  Lewis,  7  Vt.  511. 

12Ricker  v.  Barry,  34  Maine  116. 


439          THE  MEANING  OF  WORDS  USED  IN  DESCRIPTIONS      §    443 

last  three  devises.  Held  the  first  two  devises  covered  only 
fifteen  acres  each.13 

§  440.  Town  plats  illegally  recorded  or  not  recorded. — If 
the  plat  to  which  reference  is  made  in  a  deed,  be  not  legally 
recorded,  or  not  recorded  at  all,  it  may  still  be  used  for  the  pur- 
pose of  identification  of  the  land  described  in  the  deed  refer- 
ring to  such  plat.14 

§  441.  Boundary  recognized  by  parties. — Where  parties 
claiming  under  the  same  grantor  recognize  a  boundary  be- 
tween them,  and  one  of  them  afterwards  conveys  with  refer- 
ence to  that  boundary  and  without  encroaching  upon  any 
rights  of  third  persons,  he  and  those  who  claim  under  him 
are  bound  by  the  description  as  against  his  grantee  and  a 
change  of  a  recognized  boundary  by  a  resurvey  will  not  affect 
the  grantee's  rights.15 

§  442.  Parol  evidence  of  declarations  of  covenantor. — Parol 
evidence  of  the  acts  and  declarations  of  covenantor  are  ad- 
missible to  show  the  courses  and  distances  actually  run  and 
the  monuments  actually  established  in  a  previous  survey,  for 
the  purpose  of  proving  that  land  from  which  plaintiff  is  evicted 
is  embraced  within  the  description  of  the  premises  as  set  forth 
in  the  deed.16  Probably  such  declarations  must  have  been 
made  before  any  controversy  arose  and  must  have  been  against 
the  interest  of  the  party  making. 

§  443.     "Beginning  at"  and  "bounding  on  land  of  B." — 

Where  land  is  conveyed  "beginning  at"  and  "bounded  on  land 
of  B,"  the  point  of  beginning  and  boundary  is  the  true  line  of 
B's  land,  and  not  the  line  of  B's  occupation  as  shown  by  a 
fence  set  up  and  maintained  by  B,  before  and  after  the  convey- 

13Tewksbury  v.  French,  44  Mich.  15Fahey  v.  Marsh,  40  Mich.  236. 

ioo,  6  N.  W.  218.  16Bates    v.    Tymason,    13    Wend. 

14Johnstone    v.    Scott,    11    Mich.  (N.  Y.)  300. 
232. 


§    444  SURVEYING  AND  BOUNDARIES  440 

ance  with  the  consent  of  the  owner  of  the  lot  conveyed,  under 
the  mistaken  belief  that  such  was  the  true  line.17 

§  444.  Running  to  a  known  line. — Where  land  conveyed  is 
described  in  the  deed  as  running  a  certain  distance  to  an  ascer- 
tained line,  though  without  a  visible  boundary,  such  line  is  of 
itself,  a  monument  which  will  control  the  admeasurement  and 
fix  the  extent  of  the  land  conveyed.18 

§  445.  "Northerly"  means  north. — The  term  "northerly" 
in  a  grant,  where  there  is  no  object  to  direct  the  inclination 
of  the  line  to  the  east  or  to  the  west,  must  be  construed  to 
mean  north.19 

§  446.  Deed  referring  to  plan. — Where  lines  are  laid  down 
on  a  plan,  and  are  referred  to  in  a  conveyance  of  land,  the 
cOirses,  distances,  etc.,  on  such  plan,  are  as  much  to  be  re- 
garded as  the  true  description  of  the  land,  as  if  they  were  ex- 
pressly recited  in  the  deed.20 

§  447.  Contents  yield  to  certain  boundaries.— Where  def- 
inite and  permanent  boundaries  are  given,  a  deed  must  be 
considered  to  convey  all  the  land  within  these  boundaries,  not- 
withstanding the  quantity  is  much  greater  than  that  men- 
tioned.21 

§  448.  Line  center  of  highway. — The  inference  of  law  is, 
that  the  conveyance  of  land,  adjacent  to  a  highway,  carries 
with  it,  as  part  of  the  grant,  the  fee  to  the  center  of  the  high- 
way. If  the  highway  is  to  be  excluded  it  must  appear  in  ex- 
plicit terms  in  the  grant.22 

§  449.  Highway  not  mentioned  in  deed. — Where  the  south 
boundary  of  a  tract  of  land  was  the  same  as  the  north  line  of 
the  road,  it  was  held  that  the  party  took  the  fee  to  the  center 

"Cleveland  v.  Flagg,  4  Cush.  20Davis  v.  Rainsford,  17  Mass. 
(Mass.)  76.  207. 

18Flagg  v.  Thurston,  13  Pick.  21Gilma.i  v.  Riopelle,  18  Mich. 
(Mass.)  145.  I4S- 

"Brandt  v.  Ogden,  i  Johns  22  Champlin  v.  Pendleton,  13 

(N.  Y.)  156.  Conn.  23. 


441  THE  MEANING  OF  WORDS  USED  IN  DESCRIPTIONS      §    453 

of  the  road,  though  the  highway  was  not  mentioned  in  the 
deed.23 

§  450.  Laying  off  given  quantity. — Where  a  given  quantity 
of  land  is  to  be  laid  off  on  a  given  base,  it  must  be  included 
within  four  lines  forming  a  square,  as  nearly  as  may  be,  un- 
less that  form  be  repugnant  to  the  entry.24 

§  451.  The  calls  of  an  entry. — If  the  calls  of  an  entry  do 
not  fully  describe  the  land,  but  furnish  enough  to  enable  the 
court  to  complete  the  location,  by  the  application  of  certain 
principles,  the  court  will  so  complete  it.25 

§  452.  May  discard  less  important  calls. — If  a  location  has 
certain  material  calls,  sufficient  to  support  it,  and  to  describe 
the  land,  other  calls  less  material,  and  less  incompatible  with 
the  essential  calls  of  the  entry,  may  be  discarded.26 

§  453.  Quantity  a  leading  factor  in  determining  boundary. 
— A  call  in  a  deed  for  metes  and  bounds,  if  clear,  will  prevail 
over  a  call  for  quantity ;  but  where  the  boundaries  are  doubtful, 
quantity  often  becomes  a  controlling  consideration.27  In  this 
case,  the  deed  called  for  "one  thousand  fifty-six  acres  more  or 
less"  and  made  the  western  boundary  "the  summit  of  the  ridge 
dividing  the  valley  of  Petaluma  from  Sonoma  valley."  There 
were  two  ridges  between  the  two  valleys.  If  the  line  be  made 
the  summit  of  the  western  ridge,  it  would  carry  one  thousand 
seven  hundred  and  thirty-seven  and  thirteen  hundredths  acres, 
about  six  hundred  and  eighty  acres  too  much.  If  the  eastern 
ridge  be  taken  as  the  boundary  the  tract  would  contain  one 
thousand  sixty-seven  and  nineteen  hundredths  acres  or  about 
eleven  acres  more  than  the  deed  called  for.  The  court  decided 
that  the  more  eastern  ridge  was  intended. 

23Champlin     v.      Pendleton,     13          25Massie    v.    Watts,     6    Cranch 
Conn.  23.  (U.  S.)   148,  3  L.  ed.  181. 

24Massie     v.    Watts,    6    Cranch          26Massie    v.    Watts,    6    Cranch 
(U.  S.)   148,  3  L.  ed.  181.  (U.  S.)   148,  3  L.  ed.  181. 

27Winans  v.  Cheney,  55  Cal.  567 


§    454  SURVEYING   AND   BOUNDARIES  442 

§  454.  Adhere  to  quarter-line  as  more  certain. — Where 
there  is  a  mistake  in  the  government  survey  of  a  fractional  lot, 
so  that  either  the  line  of  a  meandered  stream  or  a  quarter- 
section  line,  both  of  which  are  called  for  by  the  survey,  as 
constituting  the  boundary  between  two  fractions,  must  be 
abandoned,  the  quarter-section  line  should  be  adhered  to  as 
the  more  certain  call.28 

§  455.  Private  way  a  boundary. — Where  land  is  bounded 
on  a  highway,  it  extends  to  the  center  of  the  way;  but  it  is 
equally  well  settled  in  Maine,  whatever  the  rule  may  be  else- 
where, that  where  the  land  is  bounded  on  a  private  way,  it 
extends  only  to  the  side  line  of  the  way.29 

§  456.  Apportion  excess  on  whole  line. — Where,  in  a 
platted  block,  the  lots  are  marked  on  the  plat  as  having  the 
same  number  of  feet  each,  except  one,  the  specific  dimensions 
of  which  are  also  marked,  and  a  survey  shows  that  the  whole 
block  contains  more  front  feet  than  are  marked  on  the  plat, 
the  excess  must  be  distributed  between  all  the  lots,  and  not 
given  to  that  lot  only  which  differed  in  its  dimensions  from 
the  rest.30  The  same  rule  holds  as  to  apportioning  the  de- 
ficiency along  entire  line.31 

§  457.  Center  of  street  the  boundary. — A  grantee  of  a  lot 
in  a  recorded  plat,  unless  the  terms  of  his  deed  or  the  plat 
exclude  that  construction,  takes  to  the  center  of  the  adjoining 
public  highway,  subject  to  the  public  easement;  and  the  fact 
that  the  description  in  his  deed,  after  stating  the  number  of 
his  lot,  gives  its  dimensions,  exclusive  of  the  highway,  does 
not  affect  such  construction.32 

28Martin  v.  Carlin,  19  Wis.  454-  Westphal  v.  Schultz,  48  Wis.  78,  4 

29Winslow  v.  Reed,  89  Maine  67,  N.  W.  136;  Miller  v.  Topeka  Land 

35  Atl.  1017.  Co.,  44  Kans,  354,  24  Pac.  420; 

30Pereles  v.  Magoon,  78  Wis.  Morcland  v.  Page,  2  Iowa  139; 

27,  46  N.  W.  1047,  23  Am.  St.  389.  Martz  v.  Williams,  67  111.  306. 

31Jones  v.  Kimble,  19  Wis.  429;  82Brown  v.  City  of  Baraboo,  98 

O'Brien  v.  McGrane,  27  Wis.  446;  Wis.  273,  74  N.  W.  223. 


443          T*IE  MEANING  OF  WORDS  USED  IN  DESCRIPTIONS      §    462 

§  458.  Invalid  plat. — Where  a  deed  conveys  lots  according 
to  a  recorded  plat,  the  fact  that  the  plat  is  invalid  does  not 
affect  the  deed.33 

§  459.  Adjoining  property  may  be  consulted. — Where  a  de- 
scription by  metes  and  bounds  is  supplemented  by  a  refer- 
ence to  a  particular  lot  or  subdivision  of  land  to  indicate  the 
tract  intended  to  be  conveyed,  the  former,  though  to  be  pre- 
ferred, by  ordinary  rules  of  construction,  as  the  more  certain 
expression  of  the  intention  of  the  grantor,  will  not,  however, 
necessarily  be  controlling,  if  under  all  the  circumstances,  the 
land  intended  to  be  conveyed  more  clearly  appears  by  the  latter 
description.3* 

§  460.  Monuments  control  over  quantity. — A  definite  de- 
scription in  a  deed  naming  the  point  of  beginning,  the  monu- 
ments, and  courses  and  distances,  followed  by  a  statement  as 
to  the  number  of  acres  conveyed,  passes  only  the  quantity  of 
land  included  in  the  specified  boundary,  though  that  is  less 
than  the  number  of  acres  stated.35 

§  461.  Government  plan  and  quantity  aid  construction. — 
The  fact  that  the  patent  described  the  land  as  "the  N.  E.  1/4 
of  S.  E.  1/4  of  Sec.  8"  instead  of  as  Lot  4,  does  not  exclude 
from  the  grant  any  of  the  land  that  would  properly  be  in  Lot 
4,  where  it  appears  by  the  government  plan  that  it  was  intended 
to  pass  Lot  4,  which  was  marked  as  containing  the  same  num- 
ber of  acres  as  were  granted  by  the  patent.36  Fig.  92.  The 
court  held  the  description  carried  the  point  between  the  lake 
and  the  quarter-line. 

§  462.  Corners  as  actually  established  to  govern. — In  con- 
struing a  deed  describing  land  by  the  government  survey,  the 
court  must  ascertain  the  corners  of  the  survey  as  actually  es- 
tablished, and  not  as  they  ought  to  have  been  established ;  but 

33Young  v.  Cosgrove,  83  Iowa,  35Silver  Creek  Cement  Co.  v. 

682,  49  N.  W.  1040;  Borer  v.  Lange,  Union  Lime  Co.,  138  Ind.  297,  35 

44  Minn.  281,  46  N.  W.  35&  N.  E.  125,  37  N.  E.  721. 

34Cannon  v.  Emmans,  44  Minn.  86Sheppard  v.  Wilmott,  79  Wis. 

294,  46  N.  W.  357-  *5,  47  N.  W.  1054. 


§  463 


SURVEYING   AND   BOUNDARIES 


444 


the  presumption  that  the  deed  was  intended  to  convey  accord- 
ing to  the  established  corners,  may  be  rebutted  by  evidence 
that  the  parties  were  mistaken  as  to  the  location  of  the 
government  line,  and  intended  to  convey  a  different  tract.87 


§  463.     Government  patent  part  of  description.  —  The  refer- 
ence in  a  deed  of  conveyance  of  real  estate  to  the  government 


87Squire  v.  Greer  2  Wash.  209,  26 
Pac.  222. 


445  THE  MEANING  OF  WORDS  USED  IN  DESCRIPTIONS      §    468 

patent,  in  the  description  of  the  property  conveyed,  makes  the 
description  and  reference  to  the  United  States  survey  a  part 
of  the  deed.38 

§  464.  Variance  in  measurement — Presumed  in  whole  line. 
— Variance  in  distances  in  recent  measurement  from  former 
surveyed  line,  it  is  presumed,  arose  from  an  imperfect  measure- 
ment of  the  whole  line,  and  not  from  any  particular  part.39 

§  465.  Extrinsic  evidence  to  explain  calls. — Extrinsic  evi- 
dence is  always  admissible  to  explain  the  calls  of  a  deed  for 
the  purpose  of  applying  them  to  the  subject-matter,  and  thus 
to  give  effect  to  the  deed.40 

§  466.  Referring  to  other  instrument. — An  exception  in  a 
deed  which  reads,  "except  the  dower  of  fifty  acres,  as  fully 
described  in  the  deed  given  the  C.  B.  Co."  is  not  void,  though 
the  boundaries  of  the  excepted  land  are  not  defined  in  any 
way,  as  reference  may  be  had  to  the  deed  to  the  C.  B.  Co.  to 
ascertain  them.41 

§  467.  Evident  intention  governs. — There  were  two  incon- 
sistent descriptions  in  a  deed.  The  court  held  the  first  one  to 
be  the  true  description  for  the  following  reasons:  I.  Because 
of  the  fact  that  it  was  evidently  the  intention  of  the  court 
(below)  to  find  and  adjudge  that  the  plaintiff  was  the  owner 
of  one  hundred  and  fifty  acres  of  land  and  to  quiet  title  thereto. 
2.  Because  the  first  description  covers  one  hundred  and  fifty 
acres  of  land,  and  the  second  description  not  the  one-half  of 
that  quantity,  and  3,  Because  the  first  description  is  certain 
and  reliable,  while  the  second  one  is  open  to  mistake.42 

§  468.  Length  of  outer  line  controlling  factor. — A  deed 
described  the  land  conveyed  as  "Commencing  on  the  S.  road 

38Miller  v.  Topeka  Land  Co.,  44  nia  M.  R.  Co.,  82  Cal.  497,  23  Pac. 
Kans.  355,  24  Pac.  420.  130. 

39Miller  v.  Topeka  Land  Co.,  44  41McAfee  v.  Arline,  83  Ga.  645, 
Kans.  355,  24  Pac.  420.  10  S.  E.  441. 

*°Thompson  v.  Southern  Califor-  42Caspar  v.  Jamison,  120  Ind.  58, 

21  N.  E.  743. 


§    469  SURVEYING   AND   BOUNDARIES  446 

at  the  N.  E.  corner  of  the  land  owned  by  S,  running  south  to 
the  S.  E.  corner  of  said  S's  land,  two  acres ;  from  thence  east- 
erly and  parallel  with  said  S.  road  two  acres;  thence  running 
northerly  two  acres,  until  it  strikes  said  road;  and  thence 
westerly  along  said  road,  two  acres,  to  beginning,  containing 
four  acres  of  land,  neither  more  nor  less."  Held  that  as  the 
description  by  quantity  so  clearly  shows  the  intention  to  limit 
the  grant  to  four  acres  in  rectangular  form,  and  as  the  length 
of  the  west  line  is  given,  the  intention  must  control  distances.43 
Note — In  above  case  the  S  land  held  practically  a  monument. 

§  469.  No  other  land  owned  helps  out. — The  fact  that  the 
deed  described  the  land  in  controversy  as  being  "a  lot  ninety 
by  four  hundred  and  fifty  feet  on  the  northwesterly  corner"  of 
a  specified  street,  in  a  specified  city,  county  and  state,  does  not 
render  it  void  for  uncertainty  where  the  evidence  showed  that 
the  grantor  owned  a  lot  of  land  at  that  corner  ninety  feet  by 
four  hundred  and  fifty  feet  and  owned  no  other  land  in  that 
neighborhood.44 

§  470.  Can  surveyor  locate? — If  the  description  in  a  deed  is 
such  that  a  surveyor,  by  applying  the  rules  of  surveying,  can 
locate  the  same,  such  description  is  sufficient  and  the  deed 
will  be  sustained,  otherwise  it  will  be  void.45 

§  471.  Inquiry  based  on  land  marks. — Where  a  deed  con- 
tained a  wrong  description  but  the  land  can  be  precisely  iden- 
tified by  inquiry  based  on  the  land  marks  referred  to,  the  title 
held  by  the  grantor  is  not  merely  equitable  but  legal,  and  may 
be  encumbered  as  such.46 

§  472.  Meanings  of  technical  terms  help. — A  description 
of  a  tract  as  commencing  at  a  given  spot,  "running  thence  one 
point  east  of  south,  thence  one  point  west  of  north,"  etc.,  is 

48Rioux  v.  Cormier,  75  Wis.  566,  45Hoodless  v.  Jernigan,  46  Fla. 
44  N.  W.  654-  215,  35  So.  656. 

44Burton  v.  Mullenary,  147  Cal.  46Dwight  v.  Tyler,  49  Mich.  614, 
260,  81  Pac.  544.  14  N.  W.  567. 


447          T-HE  MEANING  OF  WORDS  USED  IN  DESCRIPTIONS      §    477 

sufficiently  accurate  to  be  identified,  since  it  appears  that  a 
"point"  is  a  division  of  a  mariner's  compass  equal  to  eleven 
degrees  and  fifteen  minutes.47 

§  473.  Rejecting  part  of  description. — Where  by  omitting 
one  part  of  a  false  or  impossible  description  in  a  deed,  a  perfect 
description  remains,  the  false  part  should  be  rejected,  and 
the  instrument  upheld.48  And  this  appears  to  be  universal. 

§  474.  General  description  aided  by  evidence  aliunde. — A 
general  description  of  land  in  a  deed  conveying  the  same,  or  in 
any  other  instrument  conveying  an  estate,  in  land,  which 
points  out  the  subject  thereof  with  reasonable  certainty,  is  suf- 
ficient as  to  such  description  though  evidence  aliunde  the  in- 
strument may  be  necessary  to  determine  definitely  the  particu- 
lar description  of  land.49 

§  475.  Acts  of  parties  may  determine  tract. — C.  owned 
north  half  of  west  half  of  southwest  quarter  of  Section  30, 
containing  forty-four  acres  and  owned  no  other  land  in  that 
section.  The  land  was  improved  and  nearly  all  fenced.  C 
sold  to  W  and  put  him  in  possession  of  the  tract  and  described 
it  as,  "North  part  of  west  half  of  the  southwest  quarter  of 
Section  30,  containing  forty-four  acres  more  or  less."  Held 
the  deed  will  be  sufficient  to  convey  the  land.50 

§  476.  Plat  governs  as  to  description. — Where  a  deed  in 
describing  property  refers  to  a  map  or  plat  as  marking  the 
natural  boundaries  of  such  property,  such  plat  should  be  con- 
sidered as  giving  the  true  description,  as  much  as  though  it 
was  marked  down  on  the  deed.51 

§  477.  Inconsistent  calls. — The  description  in  a  deed  was, 
"Commencing  at  a  point  on  Jackson  St.,  the  same  being  one 

*7Hayden  v.  Brown  33  Ore.  221,  50Walker  v.  David  68  Ark.  544, 

S3  Pac.  490.  60  S.  W.  418. 

48Hayden  v.  Brown  33  Ore.  221,  51Slauson    v.    Goodrich    Transp. 

53  Pac.  490.  Co.  99  Wis.  21,  74  N.  W.  574,  40 

49Gates  v.  Paul,  117  Wis.  170,  94  L.  R.  A.  825. 
N.  W.  55- 


SURVEYING   AND   BOUNDARIES  448 

hundred  feet  from  the  corner  of  Jackson  and  Fifth  Sts. ;  thence 
along  said  Jackson  St.  southward  fifty  feet;  thence  at  right 
angles  eastward  one  hundred  and  nineteen  feet;  thence  north- 
ward fifty  feet  at  right  angles ;  thence  one  hundred  and  nine- 
teen feet  at  right  angles  west  toward  place  of  beginning;  the 
same  being  the  south  1/3  of  lots  6  and  7,  in  Block  16,  of  the 
Town  of  St.  Paul  proper."  On  the  plat  the  frontage  of  the 
lots  on  Jackson  Street  appeared  to  be  one  hundred  and  fifty 
feet,  but  was  in  fact  only  one  hundred  forty-five  and  one-half 
feet,  so  that  the  south  1/3  of  the  lots  would  commence  ninety- 
seven  feet  from  the  corner  of  Jackson  and  Fifth  Sts.  Held 
that  the  south  1/3  of  the  lots  passed.52  In  other  words,  the 
court  rejected  that  part  of  the  description  designated  by  courses 
and  distances. 

§  478.  Description  by  lots  rejected.— A  testator  devised  to 
his  widow  "the  house  where  we  now  live,  with  the  grounds 
connected  therewith,  being  lots  i,  2,  and  3,  and  2/3  of  lot  4  in 
block  225,  situated  at  the  junction  of  8th  and  Helen  Streets,  in 
the  City  of  Minneapolis."  The  lots  mentioned  were  not  sit- 
uated at  the  junction  of  8th  and  Helen  Streets,  but  at  the  junc- 
tion of  8th  and  Minnetonka  Streets.  These  lots  would  take 
only  a  part  of  the  house,  which  was  situated  on  Lots  4  and  5, 
at  the  junction  of  8th  and  Helen  Streets.  The  testator  did 
not  own  Lot  i,  and  had  conveyed  (subject  to  a  condition  of 
forfeiture  as  claimed  the  1/3  of  lot  2  next  lot  i,  but  did  own 
lots  3,  4  and  5,  and  the  2/3  of  lot  2  next  lot  i.  Held  that  the 
description  by  the  numbers  of  the  lots  was  a  mistake  and 
must  be  rejected.83 

§  479.  Invalid  plat  referred  to. — Where,  in  a  description  in 
a  deed,  a  plat  is  referred  to,  it  may  be  used  to  identify  the  land 
referred  to,  though  it  does  not  conform  to  the  statutes.5*  It 

"Colter  v.  Mann,   18  Minn.  96,  54Reed  v.  Lammel,  28  Minn.  306, 

(Gil.  79).  9  N.  W.  858;  Sanborn  v.  Mueller, 

53Butler  v.  ist  Presb.  Church,  27  38  Minn.  27,  35  N.  W.  666. 
Minn.  355,  7  N.  W.  363. 


449          THE  MEANING  OF  WORDS  USED  IN  DESCRIPTIONS      §    483 

will  be  noted  that  the  court  permitted  the  use  of  the  plat  in 
order  to  identify  the  particular  tract  of  land.  In  no  other 
way  could  the  land  be  identified.  This  is  a  use  of  extrinsic 
evidence  to  clear  up  a  latent  ambiguity. 

§  480.  Quantity  supports  call  taken. — A  deed  described  the 
property  conveyed  as  the  "north  1/2  of  the  southwest  quarter 
the  southwest  quarter  of  Section  6."  Held  that  it  should  be 
construed  to  convey  the  north  1/2  of  southwest  quarter  of 
southwest  quarter  of  Section  6,  especially  as  the  call  for  quan- 
tity supported  this  construction.55 

§  481.  Construed  most  strongly  against  grantor. — The  de- 
scription in  the  deed  under  which  plaintiff  claimed  covered 
over  two  pages,  describing  the  property  by  numbers  of  lots, 
blocks  and  government  subdivision  and  was  followed  by  the 
clause,  "Also  together  with  all  other  lands  that  may  not  have 
been  heretofore  described  belonging  to  said  South  Park  Co." 
Held  that  all  of  the  property  owned  by  plaintiff's  grantor,  at 
the  time  of  such  conveyance,  would  pass  under  clause  quoted, 
though  not  included  in  the  particular  description.56 

§  482.  Parties  presumed  to  make  valid  deed. — Some  effect 
will,  if  possible,  be  given  to  a  deed,  for  it  will  not  be  presumed 
that  the  parties  meant  it  to  be  a  nullity.57  So  if  the  court  can 
say  by  reading  from  the  four  corners  of  the  deed  what  the 
legal  effect  is  it  will  be  given  that  effect. 

§  483.  Particular  words  control  general. — Words  of  par- 
ticular description  will  control  more  general  terms  of  descrip- 
tion. Two  deeds  by  the  same  grantor  described  the  land  in- 
tended to  be  conveyed  as  follows:  i.  "A  part  of  fractional 
section  No.  19,  being  the  half  of  the  west  half  of  the  north- 
west quarter  of  Section  No.  20,  in  township  7,  range  14  west, 
containing  forty  acres."  2.  "A  certain  tract  of  land  in  Posey 
County,  lying  on  the  Wabash  river,  with  numbers  as  follows : 

55Burnett  v.  McCluey  78  Mo.  676.      Randell,  82  Iowa  89,  47  N.  W.  905. 
56Clifton    Heighths   Land    Co.   v.          57Gano  v.  Aldrige,  27  Ind.  294. 


§   4^4  SURVEYING  AND  BOUNDARIES  450 

the  half  of  a  fractional  No.  29,  (it's  the  west  half  of  the 
fractional)  containing  five  acres,  in  township  7  south,  range 
14  west."  Held  that  as  to  the  first  conveyance  the  words,  "a 
part  of  fractional  No.  19,"  being  rejected,  as  contradicting  the 
more  particular  description  which  follows,  it  was  good  to  pass 
an  undivided  half  of  the  west  half  of  the  northwest  quarter, 
etc.  Held,  also,  that  as  to  the  second  deed,  the  description 
was  unintelligible  and  no  effect  could  be  given  to  it  without 
evidence  aliunde.58 

§  484.  Granting  clause  must  prevail  against  grantor. — M. 
being  absolute  owner  of  certain  land,  conveyed  it  by  deed 
which  declares  in  the  granting  clause  that  he,  "releases,  quit- 
claims, and  conveys  to  (plaintiff)  and  its  successors  and  as- 
signs, all  his  claim,  right,  title  and  interest  of  every  name  and 
nature,  legal  or  equitable  in  and  to"  said  land.  A  subsequent 
clause  declares  that  "the  interest  and  title  intended  to  be  con- 
veyed by  this  deed  is  only  that  acquired  by  M  by  virtue 
of  a  certain  deed  previously  executed  to  him,"  and  which  (it 
is  here  assumed)  conveyed  to  him  only  an  undivided  half  of 
the  land.  Held  that  the  two  clauses  are  inconsistent ;  that  the 
granting  clause  must  prevail;  and  that  M's  whole  interest  in 
the  land  passed  by  the  deed.59  In  the  course  of  the  opinion  in 
the  above  case,  the  court  suggests  that  in  cases  of  the  kind 
harsh  rules  of  construction  must  be  resorted  to  and  they  must 
operate  most  strongly  against  the  grantor.  The  court  also 
suggests  the  following  rules,  as  determining  its  ruling,  i.  A 
deed  will  always  be  construed  most  strongly  against  the 
grantor;  2.  Of  two  contradictory  clauses  in  a  deed  the  first 
will  prevail  over  the  later,  quoting  a  familiar  old  maxim,  "The 
first  deed  and  the  last  will." 

§  485.  Plat  part  of  description  in  deed  prevails. — It  is  well 
settled  that  where  a  plat  is  referred  to  in  a  deed,  as  a  part  of 

68Gano  v.  Aldridge,  27  Ind.  204.          59Green  Bay  &  M.  Canal  Co.  v. 

Hewitt...  55  Wis.  96,  12  N.  W.  382. 


45 1  THE  MEANING  OF  WORDS  USED  IN  DESCRIPTIONS     §    486 

the  description  01  the  iand  conveyed,  such  plat  becomes  an 
essential  part  of  the  description;  and  that  courses  and  dis- 
tances, quantities  and  measurements  are  controlled  by  natural 
or  fixed  land  marks.60 

§  486.  "Along  or  upon  a  road." — A  conveyance  of  land 
generally  bounded  as  "along  or  upon  a  road,"  will  carry  the 
fee  to  the  center  of  the  road.61  In  other  words,  the  court  will 
construe  this  instrument  to  carry  title  to  the  center  of  the  road. 

"Along  the  easterly  line  of  street"  in  a  deed,  nothing  ap- 
pearing in  the  deed  to  modify,  carries  title  only  to  the  east  side 
of  the  street.62  Here  the  land  was  limited  by  the  "easterly 
line  of  street." 

"To  said  (named)  highway;  then  by  said  highway,"  etc., 
carries  line  to  the  center  of  the  highway,  unless  limited  in  other 
parts  of  the  deed.63 

As  "beginning  on  the  side  of  the  new  road  *  *  and  run- 
ning (course  given)  by  said  road  *  *  *  *  to  a  stake/'  and 
"thence  (course  given)1  to  the  place  of  beginning,"  carries  the 
fee  to  the  center  of  the  road.64 

"Beginning  at  an  angle  in  the  stone  wall,  etc"  A  convey- 
ance of  land,  "beginning  at  an  angle  in  the  stone  wall,  on  the 
easterly  side  of  the  aforesaid  road";  thence  running  around 
the  rear  of  the  lot  granted  "to  a  stake  and  stones  at  the  afore- 
said road,  thence  northerly  on  the  line  of  said  road  to  the  first 
mentioned  bound"  excludes  the  road.65 

In  the  above  case  the  court  laid  particular  stress  on  the  fact 
that  line  came  back  "to  a  stake  and  stone  at  the  aforesaid 
road,"  and  then  followed  the  line  of  the  road  to  the  point  of 

60Shufeldt  v.  Spaulding,  37  Wis.  63Oxton  v.  Groves,  68  Maine  371, 

662.  28  Am.  Rep.  75, 

61Haberman  v.  Baker,  128  N.  Y.  64Low  v.  Tibbetts,  72  Maine  92, 

253,  20  N.  E.  370,  13  L.  R.  A.  611.  39  Am.  Rep.  303. 

62Severy  v.  Central  Pac.  Ry.  Co.,  65Smith  v.  Slocomb,  75  Mass.  (9 

51  Cal.  194.  Gray)  36. 


SURVEYING  AND   BOUNDARIES  452 

beginning,  and,  in  effect,  made  the  side  of  the  road  a  monu- 
ment, clearly  showing  an  intention  to  exclude  the  road. 

§  487.  Construction  of  description  under  California  stat- 
utes.— Sec.  2077,  of  the  Code  of  Civil  Procedure,  California, 
provides:  "The  following  are  the  rules  for  construing  the 
descriptive  part  of  a  conveyance  of  real  property,  where  the 
construction  is  doubtful  and  there  are  no  other  sufficient  cir- 
cumstances to  determine  it: 

a.  Where  there  are  certain  definite  and  ascertained  par- 
ticulars in  the  description,  the  addition  of  others  which  are 
indefinite,  unknown  or  false,  does  not  frustrate  the  convey- 
ance, but  it  is  to  be  construed  by  the  first  mentioned  particu- 
lars. 

b.  Where  permanent  or  ascertained  boundaries  or  monu- 
ments are  inconsistent  with  the  measurements,  either  of  lines, 
angles,  or  surface,  the  boundaries  or  monuments  are  para- 
mount. 

c.  Between  different  measurements  which  are  inconsistent 
with  each  other,  that  of  angles  is  paramount  to  that  of  sur- 
faces, and  that  of  lines  paramount  to  both. 

d.  Where  a  road  or  stream  of  water  not  navigable,  is  the 
boundary,  the  rights  of  the  grantor  to  the  middle  of  the  road 
or  the  thread  of  the  stream  are  included  in  the  conveyance, 
except  where  the  road  or  thread  of  the  stream  is  held  under 
another  title. 

e.  Where  tide- water  is  the  boundary  the  rights  of  the 
grantor  to  ordinary  high-water  mark  are  included  in  the  con- 
veyance.    When  a  navigable  lake,  where  there  is  no  tide,  is 
the  boundary,  the  rights  of  the  grantor  to  low-water  mark  are 
included  in  the  conveyance. 

f.  Where  the  description  refers  to  a  map,  and  that  refer- 
ence is  inconsistent  with  other  particulars,  it  controls  them,  if 
it  appears,  that  parties  acted  with  reference  to  the  map ;  other- 


453  THE  MEANING  OF  WORDS  USED  IN  DESCRIPTIONS       §    4QO 

wise  the  map  is  subordinate  to  other  definite  and  ascertained 
particulars. 

§  488.  Course  and  distance  may  be  rejected  as  erroneous. — 
The  Minnesota  court66  has  said:  "In  a  deed  of  conveyance, 
the  boundary  lines  of  the  granted  premises  designated  by 
courses  and  distances,  starting  from  a  definite  place  of  be- 
ginning, disclosed  no  errors  or  inconsistencies  until  the  last 
line  was  reached,  which  was  to  run  to  the  place  of  beginning, 
but  the  given  course  and  distance  would  not  bring  it  to  the 
point,  nor  complete  the  inclosure  of  any  land."  Held  "that 
the  course  and  distance  of  the  last  line  should  be  rejected  as 
erroneous  and  effect  be  given  to  the  more  certain  designation, 
thence  to  the  place  of  beginning." 

§  489.  Which  bank  of  slough  meant? — Surrounding  cir- 
cumstances.— A  mill  site  was  described  in  a  course  as  "Com- 
mencing at  a  point  50  links  east  of  the  bank  of  the  slough," 
etc.  There  were  no  objects  which  would  satisfy  the  remain- 
der of  the  description  whether  such  starting  point  were  taken 
to  be  50  links  east  of  the  east  bank  or  east  of  the  west  bank 
of  the  slough,  but,  under  the  circumstances,  the  latter  construc- 
tion is  held  to  be  the  correct  one.67 

§  490.  Lines  actually  run  and  marked  on  the  ground  con- 
trol.— The  Nebraska  court,68  lays  down  the  rule,  "The  intention 
of  the  proprietor  of  a  town  site,  as  to  the  streets  and  lots 
therein  is  indicated  by  the  monuments  he  has  caused  to  be 
placed  at  the  corners  of  the  lots,  and  by  his  conveyance  of  the 
streets  to  the  public,  and,  in  case  of  variance  between  the  plat 
and  survey  the  lines  actually  run  and  marked  on  the  ground 
will  control."  And  the  Indiana  court69  says:  "The  lines  ac- 
tually run  on  the  ground  are  conclusive  and  must  control. 

66Owings  v.  Freeman,  48  Minn.  68Holst  v.  Streitz,  16  Nebr.  249, 

483,  51  N.  W.  4?6.  20  N.  W.  307. 

67Mack  v.  Bensley  63  Wis.  80,  23  69Evansville  v.  Page,  23  Ind.  525. 
N.  W.  97- 


§  491 


SURVEYING  AND   BOUNDARIES 


454 


Such  lines  can  not  be  assailed  where  they  can  be  established 
by  original  monuments.     See  other  authorities.70 

§  491.  Call  for  one-half  of  creek  or  down  center  of  creek. — 
In  the  conveyance  of  land  on  a  creek  a  call  for  "one-half  of 
the  creek/'  or  for  a  line  "down  the  center  of  the  creek,"  with 
"its  meanders,"  carries  title  to  the  middle  of  the  main  branch 
of  the  stream.  Where  such  stream  is  divided  by  an  island 
into  approximately  two  equal  branches,  parol  evidence  will  be 


Defendant 


Rcj93 


received  to  establish  the  main  branch.71  Fig.  93.  In  this  case 
the  court  laid  stress  on  the  more  abrupt  turning  of  one  of  the 
branches  nearly  at  right  angles  with  the  end  of  the  island,  as 
an  aid  in  establishing  the  "main  branch."  The  court  will  also 


7°Marsh  v.  Mitchell,  25  Wis.  706; 
Lampe  v.  Kennedy,  45  Wis.  23; 
Lampe  v.  Kennedy,  49  Wis.  601,  6 
N.  W.  311;  Fleischfresser  v. 
Schmidt  41  Wis.  223;  McClintock 
v.  Rogers,  n  111.  279;  Bauer  v. 


Gottmanhausen  65  111.  500;  O'Far- 
rel  v.  Harney,  51  Cal.  125;  Diehl  v. 
Zanger,  39  Mich.  601. 

71Branham  v.  Bledsoe  Creek 
Turnpike  Co.  69  Tenn.  (i  B.  J. 
Lea)  704,  27, Am.  Rep.  789. 


455          THE  MEANING  OF  WORDS  USED  IN  DESCRIPTIONS     §   4Q2 

receive  evidence  of  the  soil,  timber  and  other  natural  features 
in  determining  this  point.72     Referring  to  Fig.  93,  plaintiff 


owned  land  on  right  bank  of  creek  and  defendant  owned  land 
on  left  bank.  Held  that  the  dotted  line,  AB,  was  the  boundary 
between  them. 

§  492.  Evidence  of  natural  features  to  establish  boundary 
line. — Wolf  Island,  in  the  Mississippi  River,  about  twenty 
miles  below  the  mouth  of  the  Ohio,  is  part  of  the  State  of 
Kentucky,  and  not  part  of  the  State  of  Missouri.  This  fact 
settled  by  the  testimony  of  witnesses  as  to  which  state  exer- 
cised jurisdiction ;  as  to  where  the  middle  of  the  main  channel 
of  the  river  had  been,  when  the  boundary  between  the  states 
was  fixed ;  by  the  character  of  the  soil  and  trees  of  the  island, 
as  compared  with  the  soil  and  trees  of  the  respective  states; 
and  by  the  natural  changes  produced  in  the  course  of  the 
current  by  the  physics  and  by  hydraulics  of  the  river  since  the 
time  mentioned  as  generally  and  specifically  shown.73  Refer- 
ring to  Fig.  94,  the  letter  A  represents  the  "made  land"  or 
the  accretion  to  the  shore:  the  letter  B  refers  to  the  lands 
washed  away  by  slow  and  imperceptible  action  of  the  water. 
It  was  held  that  the  dotted  line  CD  would  be  the  boundary  line 
between  the  states  of  Kentucky  and  Missouri.  There  is 


"Missouri  v.  Kentucky,  n  Wall. 
(U.  S.)  401  20  L.  ed.  118. 


73Missouri  v.  Kentucky,  n  Wall. 
(U.  S.)  401,  20  L.  ed.  118. 


§    493  SURVEYING  AND  BOUNDARIES  456 

another  particle  of  evidence  which  the  court  considered  and 
which  was  of  great  weight  in  a  determination  of  the  question. 
That  related  to  the  fact  that  the  island  was  four  feet  above  the 
Missouri  shore  and  practically  of  the  same  height  as  the 
Kentucky  shore. 

§  493.  East  half  of  tract,  containing  fifty  acres. — Where 
the  description  in  a  deed  transferring  a  portion  of  a  tract  of 
land  having  an  irregular  southern  boundary  was  the  "east  half 
of  the  east  half  of  the  northwest  quarter,  and  the  east  half  of 
the  east  half  of  the  southwest  fractional  quarter,  all  in  section 
36,  containing  fifty  acres  of  land,  being  the  east  half  of  the  one 
hundred  acres"  etc.,  held,  that  the  deed  conveyed  one-half  of 
the  quantity  of  the  land,  and  not  the  land  lying  east  of  a  line 
drawn  through  the  middle  of  the  tract.  The  court  says :  "It 
is  a  rule  of  law  that  a  deed  must  be  so  construed,  if  possible, 
that  no  part  shall  be  rejected.  It  is  also  a  rule  of  construction 
that  if  the  description  in  the  deed  be  general,  followed  by  one 
that  is  particular,  the  latter  limits  and  defines  the  terms  of  the 
grant."74  In  this  case,  the  court  says:  "A  conveyance  con- 
taining a  description  of  the  "east  half  or  "west  half"  of  a 
parcel  of  land,  which  purported  to  be  according  to  the  United 
States  survey,  would  be  definite,  and  exclude  the  idea  of  two 
equal  quantities,  but  would  convey  the  idea  and  intention  of 
fixing  the  dividing  line  in  accordance  with  the  act  of  Con- 
gress." Hence  it  would  likely  be  held,  that  if  a  tract  of  land 
were  bounded  by  metes  and  bounds  and  then  ended  up  by  using 
the  expression  "according  to  the  United  States  government 
survey,"  that  the  distances  must  be  proportioned  according  to 
the  original  survey.  But  if,  "according  to  the  United  States 
government  survey,"  or  similar  words  were  omitted  from  the 
description  then  the  surveyor  would  be  justified  in  believing 
the  description  to  mean  the  actual  measurement  at  the  time 

74 Jones  v.  Pashby,  62  Mich.  614, 
29  N.  W.  374. 


457          THE  MEANING  OF  WORDS  USED  IN  DESCRIPTIONS      §    494 

such  description  was  written.  This  is  important  for  the  sur- 
veyor and  the  courts  to  remember.  In  a  Michigan  case,75 
the  court  had  a  similar  proposition  up  for  consideration  and 
held  that  "east  half  and  "west  half"  of  a  certain  tract  meant 
the  one-half  of  the  quantity  of  land.  Fig.  95.  Referring  to 
Fig.  95,  it  will  be  seen  that  the  west  line  of  the  tract  is  the 
west  line  of  Sec.  36;  that  the  east  line  of  the  tract  is  the  i/i6th 
section  line.  The  entire  tract  was  a  government  lot.  Plain- 
tiff owned  a  lease  of  "east  half  and  defendant  of  "west  half 
of  Lot.  5.  Question,  Where  is  the  proper  boundary  line?  It 
is  not  specified  to  be  "according  to  government  survey."  If 
the  line  be  run  as  at  CD,  the  line  will  run  at  a  point  equidistant 
between  the  east  and  west  boundaries  of  the  tract.  If  run  as 
at  AB,  it  would  divide  the  tract  into  two  equal  areas.  Held 
that  AB  was  the  division  line. 

§  494.  A  fractional  part  of  government  subdivision  usually 
means  that  fractional  part  of  the  widths  of  that  subdivision. — 
While  a  fractional  part  of  a  government  subdivision  usually 
means  that  fractional  part  of  the  width  thereof,  it  may  mean 
that  part  of  the  area.  The  context  of  the  description  or  sur- 
rounding circumstances  may  change  this  meaning.  In  a  Michi- 
gan case,76  the  description  under  consideration  by  the  court 
was :  "The  east  half  of  the  east  half  of  the  northwest  quarter, 
and  the  east  half  of  the  east  half  of  the  southwest  fractional 
quarter,  all  in  Section  36  containing  fifty  acres  of  land,  being 
the  east  half  of  one  hundred  acres."  It  was  held  that  this 
description  carried  the  east  half  of  the  entire  tract  in  area  and 
not  the  east  half  of  the  width  of  the  entire  tract.  The  last 
part  of  the  description,  "being  the  east  half  of  one  hundred 
acres,"  evidently  was  given  great  weight  by  the  court  in  ar- 
riving at  its  decision.  Referring  to  Fig.  96,  the  line  1-2-3 

75Hartford    Iron    Mining    Co.    v.          76Jones  v.  Pashby,  62  Mich.  614, 
Cambria  Mining  Co.  80  Mich.  491,      29  N.  W.  374. 
45  N.  W.  351. 


§  494 


SURVEYING  AND  BOUNDARIES 


458 


would  divide  the  tract  into  two  equal  widths  but  not  in  equal 
quantities.    The  line  4-5  would  divide  the  tract  into  two  equal 


459          THE  MEANING  OF  WORDS  USED  IN  DESCRIPTIONS      §    494 


quantities  but  not  into  two  equal  widths.     The  lines  1-2  and 
6-7  would  divide  the  two  quarter-quarters  so  that  it  would 

I  4 


Section 


Quarter 


Line 


Q) 

c 


a 

u 

Of 


Line 


Rq.  96 


give  half  of  each  quarter-quarter.    The  line  4-5  was  held  to  be 
the  division  line  between  the  parties.    The  court  says,  "A  con- 


§    495  SURVEYING   AND   BOUNDARIES  460 

veyance  containing  a  description  of  the  "East  Half"  or  "West 
Half"  of  a  parcel  of  land,  which  purported  to  be  according  to 
the  United  States  survey,  would  be  definite,  and  exclude  the 
idea  of  two  equal  quantities,  but  would  convey  the  idea  and 
intention  of  fixing  the  dividing  line  in  accordance  with  the 
act  of  Congress."  But  the  court  held  that  this  is  not  such  a 
grant;  that  it  was  a  mere  matter  of  construction  of  a  descrip- 
tion and  that  the  context  was  conclusive  as  to  the  meaning.77 

§  495-  What  distance  to  take. — In  1846,  at  the  time  of  the 
original  survey,  and  also  at  the  time  of  the  writing  of  the 
description  hereinafter  set  out,  the  distance  across  the  north 
side  of  a  certain  tract  of  land  shown  on  Fig.  97,  was  two  thou- 
sand nine  hundred  and  four  feet.  At  that  time  a  tract  of  land 
was  sold  described  as  follows:  Commencing  at  the  north- 
west corner  of  Section  3,  of  a  certain  township,  thence  run- 
ning east  along  the  town  line  to  the  first  i/i6th  corner;  thence 
south  along  i/i6th  line  to  the  east  and  west  quarter  line; 
thence  west  on  quarter  line  to  the  Mississippi  river ;  thence  up 
said  river  to  the  north  line  of  said  township ;  thence  east  along 
the  township  line  to  the  place  of  beginning.  A  tract  of  twenty 
acres  was  later  sold  off  of  the  north  side  of  said  described 
tract,  "according  to  government  survey."  This  tract  was  not 
surveyed  until  1918.  At  the  latter  date  the  river  had  washed 
away  some  sixty-eight  and  seventy-six  hundredths  feet  from 
the  west  end  of  the  tract.  In  1918,  a  surveyor  was  called  upon 
to  part  off  the  twenty  acres.  How  should  it  be  done  ? 

Answer.  At  the  time  the  land  was  originally  described  the 
distance  across  the  north  side  thereof  was  two  thousand  nine 
hundred  and  four  feet.  The  river  runs  due  north  and  south 
at  the  place  indicated.  The  south  line  of  the  twenty  acres 
should  be  run  such  distance  south  of  the  north  line  and  parallel 
thereto  as  to  part  of  the  twenty  acres,  using  the  distance  at 

"Edinger  v.  Woodke,  127  Mich. 
41,  86  N.  W.  397.  Ante  §  493- 


461  THE  MEANING  OF  WORDS  USED  IN  DESCRIPTIONS      §    495 


0,00? 


U     -2 

Q 


5 


Fiq.97 


§   495  SURVEYING  AND  BOUNDARIES  462 

the  time  of  the  formation  of  the  description.  If  the  descrip- 
tion had  been  made  in  1918,  and  nothing  said  therein  about  it 
being  "according  to  government  survey,"  the  surveyor  would 
take  the  present  distance  across  the  north  line  as  a  basis  for 
computation  of  the  width,  i.  e.,  two  thousand  eight  hundred 
and  thirty  five  and  twenty-four  hundredths  feet.  Such  width 
according  to  present  distance  would  be  three  hundred  and 
seven  and  twenty-six  hundredths  feet.  According  to  the  dis- 
tance in  1846,  it  would  be  three  hundred  feet.  And  generally 
if  a  tract  of  land  is  described  by  metes  and  bounds  "according 
to  government  survey"  the  distances  should  be  apportioned 
"according  to  government  survey."  If  described  by  metes  and 
bounds,  with  no  designation,  "according  to  government  sur- 
vey," the  surveyor  should  take  the  actual  distance  as  of  or  to 
be  determined  at  the  time  the  description  was  made.  That 
is  the  surveyor  should  consider  conditions  existing  at  that 
time.  The  parties  will  be  deemed  to  have  made  such  descrip- 
tion with  reference  to  the  conditions  existing  at  the  time  of 
the  making  thereof.  Hence,  when  a  surveyor  has  such  a  ques- 
tion propounded  to  him,  he  should  read  over  and  study  the 
description  carefully  in  all  its  bearings  and  then  apply  the 
same  according  to  conditions  existing  at  the  time  the  descrip- 
tion was  formed.  The  words  "according  to  government  sur- 
vey," when  they  appear  in  a  description,  play  an  important 
part  therein  and  should  not  be  disregarded.  The  surveyor  will 
seek  to  find  out  the  intention  of  the  parties  and  the  rule  herein 
laid  down  will  be  an  aid.  The  distances  as  of  1846  are  desig- 
nated "government  distance"  for  the  reason  the  original  sur- 
vey was  made  just  about  the  time  the  description  was  written. 
Such  distances  are  taken  to  be  the  actual  distance  at  that  time 
and  prior  to  the  time  when  the  river  washed  away  a  portion  of 
the  bank.  Such  "government  distance"  is  taken  for  the  reason 
it  was  the  only  evidence  obtainable  in  1918,  of  the  actual  dis- 
tance in  1846. 


463          THE  MEANING  OF  WORDS  USED  IN  DESCRIPTIONS      §   497 

§  496.  Northwest  corner  of  lot  means  corner  of  lot — Not 
corner  of  intersection  of  center  of  street. — Plaintiff  claimed 
title  to  the  following:  Commencing  at  a  point  fifty  feet  east 
of  the  N.  W.  corner  of  lot  i ;  thence  east  on  the  north  line  of 
such  lot  to  a  point  27  1/2  feet  west  of  the  northeast  corner  of 
lot  i ;  thence  south  ninety  feet ;  thence  east  to  the  east  line  of 
lot  2 ;  thence  south  to  the  southeast  corner  of  lot  2 ;  thence  west 
on  the  south  line  of  lot  2  to  the  east  line  of  O's  land;  thence 
north  forty-five  feet ;  thence  west  six  feet ;  thence  north  to  the 
place  of  beginning.  The  defendant  claimed  the  following :  com- 
mencing at  the  northwest  corner  of  lot  i ;  thence  south  seventy- 
five  feet  along  the  west  line  of  lots  i  and  2 ;  thence  fifty  feet 
east,  parallel  to  the  north  line  of  lot  2,  to  a  point  seventy-five 
feet  south  of  the  north  line  of  lot  I ;  thence  north,  parallel  to 
the  west  line  of  lots  I  and  2,  seventy-five  feet  to  a  point  on  the 
north  line  of  lot  i ;  thence  west  along  the  north  line  of  lot  I, 
fifty  feet,  to  the  place  of  beginning.  The  court  held  that  the 
"northwest  corner  of  lot  i,"  referred  to  in  both  deeds,  should 
be  treated  as  located  at  the  point  of  intersection  of  the  south 
and  east  lines  of  two  streets,  at  the  northwest  corner  of  lot  i, 
and  not  at  the  point  of  intersection  of  the  center  lines  of  such 
streets.  So  held  notwithstanding  the  fact  that  the  court  con- 
cedes that  the  defendant  owns,  subject  to  the  public  easement, 
the  land  covered  by  the  streets  to  the  center  line  thereof.78 
And  the  Supreme  Court  of  Indiana  has  held  that  "the  lot," 
must  be  understood  to  mean  the  land  independently  of  the 
street.79  To  illustrate  the  claims  by  the  respective  parties,  see 
Fig.  98.  The  defendant  claimed  the  proper  line  between  him- 
self and  the  plaintiff  should  be  A-B.  The  plaintiff  claimed  the 
true  line  to  be  B-C.  Held  A-B  was  the  true  boundary  line. 

§  497.  To  a  tree  on  bank  of  river ;  thence  down  river,  etc. — 
A  survey  called  for  a  tree  "on  bank  of  river  Monongahela,  and 

78Wegge  v.  Madler,  129  Wis.  412,  79Montgomery  v.  Hines,  134  Ind. 
109  N.  W.  223,  116  Am.  St  953-  221,  33  N.  E.  noo. 


§  498 


SURVEYING  AND   BOUNDARIES 


464 


thence  down  said  river  by  the  several  courses  and  distances/' 
etc.  to  beginning.  The  distance  from  the  tree  mentioned  to 
the  water  was  14  perches,  and  the  diagram  showed  the  marks 
as  being  at  some  distance  from  the  margin  of  the  river.  Held 
there  being  no  evidence  of  a  contrary  intention,  the  river  was 
the  boundary.80 

Center    of     Oqden     Ave 
f— so Y 1- 


1 

:J 


23  76     .    2624 

i 
t 

\Lot 

~c       \ 

0            \ 

-C             v   * 

J  so    \R 

Block     IJ7 

<-L_ 
"t—                                                                   ° 

*     \ 

50          v 

(S 

E                   o> 

0 

ex. 

L< 

>t 

Z  Block  137 

27Xi 

O's  Land 

tf 

* 

0 
<o 

Rq.  98 

§  498.  Bounded  by  a  navigable  river. — A  survey  returned 
as  "bounded  by  a  navigable  river"  vests  in  the  owner  the  right 
to  the  soil  to  ordinary  low-water  mark  of  the  stream,  subject 
to  the  public  right  of  passage,  etc.,  between  ordinary  high  and 
low-water  mark.81  Very  likely  this  right  to  passage  would  be 

80Grant  v.  White,  63  Pa.  271. 
81Wood  v.  Appal,  63  Pa.  210. 


465  THE  MEANING  OF  WORDS  USED  IN  DESCRIPTIONS      §    5OI 

confined  to  the  use  of  the  river  at  high-water  mark  and  not 
when  the  water  has  settled  to  low-water  mark. 

§  499.  Conflict  of  descriptions  in  deeds  from  same  per- 
son.— It  frequently  happens  that  the  same  person  has  given  two 
deeds,  intended  as  a  description  of  the  same  tract  of  land. 
Unless  the  second  deed  was  given  for  the  express  purpose  of 
correcting  an  erroneous  description  and  so  shows  on  its  face 
the  rule  is :  "In  the  event  of  a  conflict  of  the  descriptions  in 
deeds  from  the  same  person,  intended  as  the  same  tract  of  land, 
the  description  in  the  deed  that  was  first  executed  controls  and 
the  boundaries  must  be  run  accordingly."82 

§  500.  Tract  bounded  by  river. — In  case  a  line  is  described 
as  running  to  a  river  and  "thence  up  said  river"  or  "down 
said  river,"  the  line  is  to  follow  the  turnings  of  the  river  and, 
if  nonnavigable,  must  extend  to  the  thread  of  the  stream.83 

Where  land  is  bounded  by  a  river  or  road  the  boundary  line 
is  in  the  center  of  the  river  or  road,  unless  the  description 
clearly  limits  the  line  to  the  exterior  border  thereof.84  A  deed 
of  land  bounded  by  a  mill  pond  which  is  a  mere  enlargement  of 
the  river  passing  through  it  passes  title  to  the  thread  of  the 
stream.85 

§  501.  Can  claim  actual  measurement  only. — A  tract  of 
land  is  described  as  follows :  Commencing  on  the  section  line, 
4.92  chains  north  of  the  southwest  corner  of  Section  27-15-11 
east;  thence  north  along  said  section  line  7.25  chains;  thence 
east  1.37  1/2  chains;  thence  south  7.25  chains;  thence  west 
1.37  1/2  chains  to  the  place  of  beginning.  There  is  a  nav- 

82Flynn  v.  Sparks,  10  Ky.  L.  960,  Bolen  122  Mo.  479,  24  S.  W.  142, 

ii  S.  W.  206.  24  L.  R.  A.  507. 

83Brown  v.  Huger,  21  How.  (U.  85Roberts  v.  Decker  120  Wis.  102, 

S.)  305,  16  L.  ed.  125.  97  N.  W.  519;  Lawson  v.  Mowry, 

84Banks  v.  Ogden,  2  Wall  (U.  S.)  52  Wis.  219,  9  N.  W.  280;  Fox 

57,  17  L.  ed.  818;  White's  Bank  v.  River  Flour  &  Paper  Co.  v.  Kelley, 

Nichols,  64  N.  Y.  71;  Snoddy  v.  70  Wis.  287,  35  N.  W.  744. 


§    5°2  SURVEYING   AND   BOUNDARIES  466 

igable  lake  lying  north  of  the  tract  but  no  mention  of  the  lake 
is  made  in  the  description,  and,  at  the  ordinary  stage  of  water, 
does  not  touch  the  lake.  In  fact,  the  nearest  approach  of  the 
lake,  at  low-water  mark,  to  the  tract,  is  1.70  chains.  At  high- 
water  mark,  the  lake  just  cuts  across  the  northwest  corner  of 
the  tract  a  few  feet.  The  question  is  :  Can  the  owner  of  the 
tract  claim  riparian  rights  ? 

This  problem  is  mostly  a  matter  of  construction.  The 
words  of  the  description  are  plain  and  unambiguous  and  indi- 
cate that  the  owner  of  the  property  can  claim  only  the  dis- 
tance set  forth  in  his  description.  If  the  wording  of  the  de- 
scription was,  in  part,  "north  7.25  chains  to  lake,"  it  would 
indicate  that  the  parties  fixed  the  lake  as  the  boundary,  and 
such  owner  would,  in  that  event,  be  entitled  to  follow  the 
shore  of  the  lake  northerly  as  it  receded  or  dried  up.  The 
annexed  figure  will  give  a  general  idea  of  the  situation.  Fig. 

99-86 

§  502.     Tract  bounded  on  a  private  way. — The  courts  of 

the  several  states  do  not  agree  on  the  rule  to  be  followed  in 
such  cases.  The  weight  of  authority  is  clearly  to  the  effect 
that,  unless  the  description  clearly  indicates  a  different  con- 
struction, the  court  will  hold  the  grant  extends  to  the  center 
of  the  private  way.  The  Connecticut  court  takes  the  opposite 
view  and  holds  that  a  tract  of  land  designated  by  metes  and 
bounds,  describing  one  side  as  bounded  "on  Seery  Place/' 
which  was  simply  a  private  way,  the  grantee  took  to  the  side 
of  the  way  only.87  The  Supreme  Court  of  Massachusetts  holds 
that  the  grant  would  carry  to  the  center  of  the  private  way. 
In  fact,  that  court  makes  no  difference  in  construction  of 
descriptions  bounding  on  a  private  or  public  way.88  The 

86 Ante  §  283.  88Fisher  v.  Smith,  9  Gray  (Mass.) 

87Seery  v.  City  of  Waterbury,  82      441 ;     McKenzie    v.     Gleason,     184 

Conn.  567,  18  Ann.  Cas.  73-  Mass-  452,  69  N.  E.  1076,  100  Am. 

St.  566. 


467  THE  MEANING  OF  WORDS  USED  IN  DESCRIPTIONS     §    5O2 


courts  of  Maine  agree  with  the   Connecticut  court.89     The 
Connecticut  court,  in  the  case  cited  above,  says:     "There  is 


1.375 


r>j 
ro 
en 

n 


1.375 


no 


S.WCor. 
Sec627 


Fiq.99 


no  statute  or  judicial  precedent  which  governs,  nor  any  gen- 
eral custom  of  which  we  can  take  judicial  notice.    The  ques- 

89Ames  v.  Hilton,  70  Maine  36. 


§    5°3  SURVEYING  AND  BOUNDARIES  468 

tion  is  one  also  not  settled  by  the  common  law.  It  is  therefore 
our  duty  to  answer  it  by  the  choice  of  the  rule  which,  in  our 
judgment,  is  best  calculated  to  do  justice  in  cases  of  this 
character.  This  we  have  done.  We  adopt  that  rule  which 
does  not  raise,  in  case  of  a  boundary  on  a  private  way,  the 
presumption  which  obtains  in  case  of  one  on  a  highway."  In 
our  judgment,  it  is  largely  a  question  of  intention  of  the  par- 
ties. In  finding  that  intention,  of  course,  the  court  would 
consider  all  of  the  surrounding  circumstances. 

§  503.  Private  grant  interpreted  favorable  to  grantee. — A 
private  grant  is  to  be  interpreted  favorable  to  the  grantee  and 
where  the  garntee  in  a  private  conveyance  is  the  owner  of  the 
bed  of  a  tidal  stream,  designated  as  a  boundary  of  the  land 
granted,  the  conveyance  will  be  held  to  extend  to  the  thread 
of  the  stream.90  And  where  a  creek  is  made  a  boundary  of  the 
land  conveyed,  and  the  calls  of  conveyance  ascend  the  creek, 
the  line  ascending  the  creek  follows  the  thread  of  the  stream, 
and  the  courses  and  distances  must  yield  to  the  actual  line  of 
the  creek.91  In  Illinois,  grants  of  land  to  a  stream  carry  title 
to  the  thread  of  the  stream  unless  restricted  by  the  wording  of 
the  grant,  and  it  is  said,92  that  "Grants  of  land  bounded  on 
streams,  carry  the  exclusive  title  of  the  grantee  to  the  center 
of  the  stream,  subject  to  the  rights  of  navigation  in  the  public." 
But  in  case  of  a  parcel  bounded  by  a  lake  or  pond,  the  grantee 
takes  to  low-water  mark.93  Where  the  description  in  a  trans- 
fer is  "according  to  a  certain  plan  or  recorded  plat,"  that 
plat  or  plan  is  a  material  part  of  the  description  and  unless 
there  be  fraud  or  mistake,  such  plan  or  plat  will  control.9* 

9°Freeman  v.  Bellegarde,  108  Cal.      120  111.  509,  12  N.  E.  243,  60  Am. 
179,  4i  Pac.  289,  49  Am.  St.  76.          Rep.  575- 

91Freeman  v.  Bellegarde,  108  Cal.         93Trustees  of  Schools  v.  Schroll, 
179,  41  Pac.  289,  49  Am.  St.  76.          120  111.  509,  12  N.  E.  243,  60  Am. 

92Trustees  of  Schools  v.  Schroll,      Rep.  575- 

94McCormick  v.  Huse,  78  111.  363. 


469          THE  MEANING  OF  WORDS  USED  IN  DESCRIPTIONS      §    505 

§  504.     Meaning  of  words  in  deed — "To  the  pond,  etc." — 

A  deed  described  the  boundary  of  certain  land  as  "running  to 
the  pond,  to  a  stake  and  stones."  Held,  that  this  restricted 
the  grantee  to  the  "stake  and  stones,"  if  they,  or  their  original 
location  could  be  ascertained;  if  not,  then  the  grant  extended 
"to  the  pond."95  A  grant  of  land  extending  to  a  monument 
standing  on  a  bank  or  margin  of  a  river,  goes  to  the  thread 
of  the  river,  unless  the  terms  of  the  grant  denote  an  intention 
to  stop  at  the  margin.96 

If,  in  a  deed,  the  boundary  line  on  one  side  of  the  land  con- 
veyed as  running  from  a  given  monument  easterly  to  a  creek 
parallel  with  the  south  line  of  another  tract  of  land,  and  such 
southern  line  of  the  other  tract  of  land  is  not  a  straight  line, 
but  meanders,  then  the  boundary  line  described  in  the  deed  will 
run  parallel  with  the  other  line  in  its  meanderings,  and  not 
straight,  and  parallel  with  its  general  course.  The  word, 
"easterly,"  when  used  alone  means  due  east  but  it  may  mean 
something  else  as  shown  by  the  context,  and  will  then  mean 
what  the  qualifying  words  make  it  mean.97 

§  505.  When  the  construction  of  a  deed  is  doubtful.— 
When  the  construction  of  a  deed  is  doubtful  great  weight  is 
to  be  given  to  the  construction  put  upon  it  by  the  parties,  es- 
pecially in  doubtful  questions  of  boundaries,  which  must  be 
presumed  to  be  within  their  knowledge.  When  both  parties, 
therefore,  agree  as  to  the  boundaries  and  lines  of  a  lot,  they 
must  be  taken  to  be  the  true  boundaries  and  lines  unless  the 
contrary  can  be  clearly  shown.98 

When  a  wall  dividing  two  city  lots  and  standing  four  inches 
on  each  lot  has  existed  for  sixty  years  and  a  part  of  it  has 
been  treated  as  a  party  wall  by  the  owners  of  both  lots,  it  will 
be  presumed,  in  the  absence  of  evidence  to  the  contrary,  to 

95Robinson  v.  White,  42  Maine  97Fratt  v.  Woodward,  32  Cal.  219, 

209.  91  Am.  Dec.  573. 

96Robinson  v.  White,  42  Maine,  98Stone  v.  Clark,  i  Mete.  (Mass.) 

209,  66  Am.  Dec.  274.  378,  35  Am.  Dec.  370. 


§    5°6  SURVEYING   AND   BOUNDARIES  470 

have  become  a  party  wall  throughout  its  length  and  the  owner 
of  either  lot  may  strengthen  and  repair  the  foundation  of  the 
wall  and  build  the  wall  higher  than  the  adjoining  house." 
It  is  but  natural  that  the  meaning  given  to  an  instrument  by 
the  interested  parties  should  have  great  weight  with  the  court 
in  cases  of  doubt.  It  is  a  practical  construction  placed  on  the 
language  used. 

§  506.  Boundary  between  riparian  owners  a  fresh  water 
stream. — When  the  boundary  between  riparian  owners  is  a 
fresh  water  stream,  the  middle  thereof  is  the  lineal  partition 
between  them,  unless  by  the  express  terms  of  the  grant  to  the 
first  possessor  this  conclusion  of  law  is  excluded.1  Still  as 
we  have  seen,  a  slight  variation  in  the  language  used  would 
change  the  meaning.2  If  the  boundary  was  one  running  to 
the  "side  of  a  stream,"  it  would,  unless  modified  by  the  con- 
text, be  limited  to  the  side.3 

§  507.  Monuments  may  yield  to  courses  and  distances. — 
It  is  laid  down4  that  "Courses  and  distances  which  enclose  the 
particular  land  may  prevail  over  monuments,  where  the  latter 
would  defeat  the  grant"  This  is  an  extreme  case  and  indi- 
cates that  the  court  disregarded  the  general  rule  only  because 
an  adherence  thereto  would  defeat  the  grant.5  In  the  case  of 
White  v.  Luning,  the  monument  referred  to  in  the  descrip- 
tion in  the  deed  or  patent  was  given  as  being  a  "fence,"  i.  e., 
the  call  in  one  course,  being  "to  a  fence."  Evidently  in  this 
case  there  was  an  error  in  such  call,  and  the  two  calls  were 
inconsistent.  In  that  event,  the  court  should  take  the  more 
reasonable  as  indicated  under  all  of  the  circumstances. 

"Fleming  v.  Cohen,  186  Mass.  4 White  v.  Luning,  93  U.  S.  514, 

32|,  71  N.  E.  563,  104  Am.  St.  572.  23  L.  ed.  938. 

rMuller  v.  Landa,  31  Tex.  265,  5Whitney  v.  Detroit  Lumber 

98  Am.  Dec.  529.  Company,  78  Wis.  250,  47  N.  W. 

2Ante  §  486.  425 ;    Moran   v.    Lesotte,   54    Mich. 

8Ante  §  486.  90,  19  N.  W.  757. 


471  THE  MEANING  OF  WORDS  USED  IN  DESCRIPTIONS      §    509 

§  508.  Low-water  mark — Metes  and  bounds — Monu- 
ments— Courses. — Where  the  boundary  in  a  description  is  "to 
low  water-mark  of  the  Mississippi  River,  thence  down  to  the  ex- 
tended line  between  surveys,"  the  word,  "down"  means  down 
the  river  and  the  land  extends  to  the  center  of  the  river.6 
Metes  and  bounds  in  a  description  of  premises  control  dis- 
tances and  areas,  if  there  be  inconsistency  between  them.7  If 
calls  for  descriptions  do  not  harmonize  in  running  a  certain 
direction  and  all  known  calls  of  survey  are  met  by  running  in 
opposite  direction  this  may  be  done.8  Natural  objects  called 
for  in  a  description,  such  as  mountains,  lakes,  rivers,  creeks, 
rocks,  etc.,  control  artificial  objects,  such  as  marked  lines, 
marked  trees,  stakes  and  the  like,  and  artificial  objects  control 
courses  and  distances,  and  quantity  is  controlled  by  courses 
and  distances.9 

§  509.  Bayou  may  be  navigable  river. — A  bayou  in  the 
Saginaw  river,  from  six  to  nine  feet  deep,  the  upper  end  of 
which  is  closed,  and  which  has  been  and  can  be  used  for  pur- 
poses of  navigation,  is  a  navigable  river,  though  it  rises  and 
falls  with  the  Saginaw  river,  and  has  no  current.10  In  this 
case,  plaintiffs  claimed  the  right,  as  riparian  owners,  to  use 
the  bayou  as  a  navigable  stream.  Defendant  claimed  that 
plaintiff  had  no  such  right.  The  plaintiffs  received  convey- 
ance from  the  owner  of  the  platted  property.  The  property 
described  by  lot  in  a  plat  in  which  the  dedication  portion  says : 
"The  portion  with  shaded  boundaries  on  the  map  has  been 

«St.  Louis  v.  Rutz,  138  U.  S.  226,  Watson,   137  U.   S.  584,  34  L.  ed. 

34  L.  ed.  941,  ii  Sup.  Ct.  337.  803,  n  Sup.  Ct.  201. 

7Morrow   v.   Whitney,   95   U.    S.  9Ayers  v.  Watson,  113  U.  S.  594, 

551,  24  L.  ed.  456;  Home  v.  Smith,  28  L.  ed.  1093,  5  Sup.  Ct.  641;  Cas- 

159  U.  S.  43,  40  L.  ed.  69,  15  Sup.  par  v.  Jamison,  120  Ind.  63,  21  N. 

Ct.  988.  E.    743;    Miles    v.    Sherwood,    84 

8Simmons     Creek     Coal     Co.    v.  Tex.  488,  19  S.  W.  853. 

Doran,    142   U.    S.   417,   35   L.   ed.  10Turner   v.    Holland,    65    Mich. 

1063,    12    Sup.    Ct.    239;    Ayers    v.  453,  33  N.  W.  283. 


§    5°9  SURVEYING  AND   BOUNDARIES  472 

sold  by  the  proprietors  to  the  parties  whose  names  are  marked 
on  the  lots.  The  lots  sold  and  bounded  on  the  water  are  sold 
only  as  far  as  the  shaded  portion  extends."  Plaintiff's  lots 
were  not  among  these.  Held,  that  this  clause  did  not  imply 
any  reservation  of  the  proprietor  to  himself  of  the  water- 
rights  of  the  lots  not  so  sold  or  shaded.  Plaintiffs  lots  were 
conveyed  only  by  number  and  according  to  the  plat.  On  the 
plat  they  appear  as  bounded  by  the  bayou.  The  map  shows  the 
depth  of  the  lots,  in  feet  and  hundredths,  to  the  bank  of  the 
bayou.  Held  that  the  rule  that  natural  boundaries  govern 
courses  and  distances  applies  and  plaintiffs  took,  with  their 
lots,  the  riparian  rights  incident  to  the  ownership  of  the 
bank.11 

The  court  in  the  above  case  cites  Watson  v.  Peters12  where 
Justice  Cooley  lays  down  the  rule  that,  "The  owner  of  city 
lots  bounded  by  navigable  streams,  like  the  owner  of  any  other 
lands  thus  bounded,  may  limit  his  conveyance  within  specific 
limits,  if  he  shall  so  choose,  but,  when  he  conveys  with  the 
water  as  a  boundary,  it  will  never  be  presumed  that  he  reserves 
to  himself  proprietary  rights  in  front  of  the  land  conveyed, 
which  he  may  grant  to  others  for  private  occupation,  or  so 
occupy  himself  as  to  cut  off  his  grantee  from  the  privileges 
and  conveyances  which  appertain  to  the  shore  of  navigable 
water/'  Hence  it  is  the  invariable  rule  that  where  the  owner 
of  lots  fronting  on  water  conveys  them  without  any  reserva- 
tion, he  transfers  all  riparian  rights  to  the  water  front  to  his 
grantee  unless  the  recorded  plat  shows  a  reservation  in  himself 
at  the  time  of  the  dedication  of  the  plat.  Should  there  be  a 
reservation  in  the  grant  the  court  will  have  to  determine  the 
meaning  thereof. 

"Turner    v.    Holland,    65    Mich.          12Watson  v.  Peters,  26  Mich.  508. 
453,  33  N.  W.  283. 


CHAPTER  XIX 


SOME  USUAL  AND  UNUSUAL  QUESTIONS  ANSWERED 


Sec. 

510.  Generally. 

511.  East  and  west  quarter  line  of 

section  six. 

512.  Section     six     in     "fractional 

township." 

513.  Interior    section    made    frac- 

tional by  lake  to  run  quar- 
ter line. 

514.  Fractional    section    five,    no 

quarter      corners      estab- 
lished. 

515.  Two  section  corners  and  one 

quarter    corner    only    es- 
tablished. 

516.  Fractional   section   two — East 

part  in  lake — Run  quarter 
lines. 

517.  "More   or   less    according  to 

the  United  States  survey." 

518.  The  north  eighty  acres  of  N. 

W.  %  of  section  five. 

519.  Quarter-quarter      corner      in 

fractional    section. 

520.  Quarter-quarter    corner    west 

half  section  six. 

521.  Quarter    corners    north    and 

west  sides  of  section  six. 

522.  Quarter   corners,    other   than 

six    on    north    and    west 
sides  township. 

523.  Lost     quarter     corner,     west 

side  of  section  two. 

524.  Lost  interior  section  corners 

common  to  four  sections. 


Sec. 

525.  Lost  corners  common  to  four 

sections  on  town  or  range 
line. 

526.  Lost  corner  common  to  two 

sections  only  on  town  or 
range  line. 

527.  Where  section  lines   are  not 

due  lines. 

528.  A   lost    closing   corner    from 

which  a  standard  parallel 
has  been  initiated. 

529.  A   lost   standard   corner. 

530.  Restoration  of  township  cor- 

ners common  to  four 
townships. 

531.  Re-establishment  of  lost  clos- 

ing corner. 

532.  Re-establishment  of  meander 

corners. 

533.  To    re-establish    one    of    two 

double  corners. 

534.  Re-establish     double     corner 

where  both  are  missing. 

535.  To    re-establish    one    missing 

triple  corner  on  range 
line. 

536.  Re-establish  triple  corners  on 

range  line  where  all  are 
missing. 

537.  To  restore   fractional   section 

lines  closing  upon  reser- 
vations or  grants  to  private 
persons. 


473 


§    510  SURVEYING  AND  BOUNDARIES  474 

Sec.  Sec. 

538.    Relocation  of  moved  corners.  corner   of   section    five  in 

539-     To  establish  west  quarter  cor-  a    township    bordering 

ner  of  section  six.  north  on  a  correction  line. 

540.    To      establish      one-sixteenth  543.     To      re-establish      the      east 

corner     of     same     section  quarter   corner   of   section 

north   of   the   quarter   cor-  five. 

ner.  544.     Observations      on      different 

54L    To     establish     north    quarter  methods     of     establishing 

corner  of  section  six  in  a  quarter-quarter  corners 

township      bordering      on  north    of    center    in    frac- 

correction  line  north.  tional  sections. 
542.    To    establish     north    quarter 

§  510.  Generally. — The  surveyor  is  constantly  meeting  with 
perplexing  problems.  Frequently  these  problems  arise  in  the 
field.  While  he  may  decide  in  a  majority  of  cases  correctly, 
yet  he  often  feels  that  he  would  be  a  little  more  confident  of 
his  position  if  he  could  have  some  authority  near  at  hand  to 
confirm  his  conclusions.  This  chapter  will  especially  treat  of 
such  questions  and  will  deal  with  the  more  important  problems 
which  may  arise  in  actual  practice.  No  attempt  will  be  made 
to  cover  the  entire  field.  But  it  is  hoped  the  surveyor  will  be 
able  to  use  the  suggestions  made  in  working  out,  in  his  own 
way,  various  other  questions  which  may  arise. 

Of  course,  the  surveyor  will  carefully  examine  all  of  the 
original  field-notes  pertaining  to  the  particular  section  under 
consideration,  and  ascertain  whether  or  not  particular  instruc- 
tions were  given  by  the  surveyor-general  to  his  deputy  who 
made  the  original  survey.  If  such  instructions,  out  of  the 
ordinary  were  given,  they  may  play  an  important  part  in  the 
work  of  the  local  surveyor  and  he  should  be  guided,  in  a 
measure,  thereby. 

§  511.     East  and  west  quarter  line  of  section  six. — All  of 

the  corners  of  section  six  of  a  given  township,  except  the  east 
quarter  corner,  are  known.  That  corner  is  in  a  meandered 
lake  and  was  never  located.  This  section  is  not  a  part  of  a 


475 


ANSWERS    TO    QUESTIONS 


§    511 


so-called  "fractional  township."    How  is  the  surveyor  to  run 
the  east  and  west  quarter  line? 

Answer.     As  the  west  quarter  corner  was  originally  estab- 
lished at  exactly  40  chains  from  the  southwest  corner  of  the 

c  B  A 


Fiq.100 


section,  and  furthermore,  had  the  east  quarter  corner  been 
established,  it  would  have  been  placed  at  exactly  40  chains, 
original  measurement,  north  of  the  southeast  corner  of  the 
section,  the  surveyor  should  run  the  east  and  west  quarter 
line  parallel  to  the  south  boundary  of  the  section,  starting  from 
the  west  quarter  corner.  Similarly,  if  the  east  quarter  corner 


§  512 


SURVEYING  AND  BOUNDARIES 


476 


is  known  and  the  west  quarter  corner  was  never  located  owing 
to  a  body  of  water,  or  otherwise,  the  surveyor  will  start  at  the 
east  quarter  corner  and  run  a  line  parallel  to  the  south  boun- 
dary until  it  intersects  the  lake  or  other  boundary.  The  north 
and  south  quarter  line  under  like  circumstances  should  be  run 
parallel  to  the  east  side  of  the  section.1 

Fig.  100.     Corners  A,  B,  C,  D,  E,  F,  and  G  are  known. 


c 
Fiq.101 


East  quarter  corner  in  lake  and  never  established.    Run  DH 
parallel  to  EG.2 

§  512.     Section  six  in  "fractional  township." — In  the  event 
section  six  is  a  part  of  a  "fractional  township"  and,  assuming 


Sections  2396,  Rev.  St;  4804 
Comp.  St;  2397,  Rev.  St;  4805 
Comp.  St 


2R.  L.  C   (1909)   78-79;  ante  § 
367. 


477  ANSWERS    TO    QUESTIONS  §    513 

that  the  entire  northerly  boundary  is  along  a  "water  course, 
Indian  boundary  line,  or  other  external  boundary  of  such  frac- 
tional township/'  Section  2936  United  States  statutes  would 
apply  and,  in  running  the  north  and  south  quarter  line  of  the 
section,  the  surveyor  should  run  a  true  north  and  south  line 
from  the  south  quarter  corner  to  the  said  "water  course,  or, 
etc."  Fig.  101.  The  south  quarter  corner  C  is  known.  Run 
CF  due  north  from  C  until  it  intersects  the  "Indian  boun- 
dary line."  In  practice,  this  is  attained  by  running  the  line 
a  mean  between  AB  and  DE.  The  same  rule  will  apply  if  the 
"Indian  boundary  line"  ran  along  the  westerly  side  of  the  sec- 
tion.3 

§  513.  Interior  section  made  fractional  by  lake,  to  run 
quarter  line. — Where  an  interior  section  is  made  fractional  by 
a  meandered  lake,  or  other  body  of  water,  and  not  in  a  "frac- 
tional township,"  and  no  quarter  corner  was  ever  established, 
say  on  the  west  side  of  the  section,  the  surveyor  will  begin  at 
the  east  quarter  corner  and  run  a  line  westerly  on  a  variation 
which  shall  be  a  mean  between  the  north  and  south  boundaries 
of  the  section.  Thus,  if  the  north  boundary  is  a  true  east  and 
west  line  and  the  south  boundary  runs  on  a  variation  of  N 
89  degrees  and  30  minutes  E,  the  east  and  west  quarter  line 
should  run  on  a  variation  of  N.  89  degrees  and  45  minutes  E. 
Fig.  1 02.  Corners  A,  B,  C,  D,  and  E  are  known.  Run  CF 
a  mean  between  AB  and  DE.  Some  writers  have  construed 
Section  2396  (subdiv.  2)  to  apply  to  such  a  case  and  have  laid 
down  the  rule  that  the  quarter  line  should  be  run  due  east  and 
west  or  north  and  south,  as  the  case  may  be.  But  they  arrive 
at  a  true  north  and  south  or  east  and  west  line  by  making  the 
line  a  mean  as  herein  laid  down.  But  it  seems  that  subdivision 
2  of  above  section  applies  strictly  to  "fractional  townships,"  and 
not  to  fractional  sections  in  an  ordinary  township.  However, 

*R.  L.  C.  78-79;  ante  §  367. 


§  5H 


SURVEYING  AND  BOUNDARIES 


478 


the  United  States  land  office  approves  of  running  such  lines 
on  a  mean  variation.4 

§  514.     Fractional  section  five,  no  quarter  corners  estab- 
lished.— In  this  illustration,  no  government  quarter  corners 


\ 


East 


D 


were  established.    The  government  measurements  of  the  sec- 
tion lines  will  be  found  on  the  plan,  Fig.   103.     By  subse- 

*R.  L.  C.  78-79;  ante.  §  367. 


479 


ANSWERS   TO   QUESTIONS 


§    514 


quent  measurement  the  following  result  was  had.  North  side 
79.50  chs.,  West  79.80  chs.,  South  49.50  chs.,  East  76.60  chs. 
Where  shall  the  quarter  corners  be  planted? 


Fiq.103 


Answer.  The  quarter  corner  on  the  north  side  should  be 
placed  on  a  direct  line  and  midway  between  the  section  cor- 
ners. That  on  the  west  side  should  be  placed  at  40  chains, 
government  measure,  north  of  the  southwest  corner  of  the 


§  5H 


SURVEYING  AND   BOUNDARIES 


480 


section  and  in  a  direct  line  joining  the  section  corners.  From 
the  quarter  corner  on  the  west,  as  established,  run  a  line  paral- 
lel to  the  south  boundary  of  the  section  easterly  until  it  inter- 
sects the  east  side  of  the  section.  This  will  be  the  east  quarter 
corner.  From  the  north  quarter  corner,  as  established,  run  a 


Lake 


Ficj.KHA 


line  southerly  on  a  bearing,  which  is  a  mean  between  the  east 
and  west  sides  of  the  section,  and  at  the  point  of  intersection 
with  the  south  boundary  of  the  section  plant  the  quarter  cor- 
ner. Note  the  difference  in  running  the  two  quarter  lines. 
By  computation,  the  later  measurement  from  S.  W.  Cor.  of 


481  ANSWERS   TO   QUESTIONS  §    516 

Sec.  to  W.  1/4  Cor.  will  be  40.201  chs.  79.40  :  79.80  : : 
40  :  X.  X  will  equal  40.201  chs.  EF  is  parallel  to  AG.  HI 
is  a  mean  between  AB  and  CD.5 

§  5I5-  Two  section  corners  and  one  quarter  corner  only 
established. — It  frequently  happens  that,  owing  to  lakes  or 
other  conditions,  two  or  more  of  the  section  corners  and  two 
or  more  of  the  quarter  corners  were  never  established  by  the 
government  surveyors.  How  is  the  surveyor  to  subdivide 
such  a  section?  Fig.  1043  presents  such  a  proposition.  As- 
sume that  corners  H  and  C  may  be  found ;  also  quarter  corner 
A  and  meander  corners  D,  E,  and  G  are  to  be  found.  Run  the 
two  quarter  lines.  The  surveyor  will  first  measure  lines  CD, 
AH,  GH  and  thus  test  his  chains  or  tape  with  reference  to 
government  survey.  He  will  then  take  the  bearings  of  CD 
and  HG.  He  will  run  the  line  AB  on  a  bearing  which  is  a 
mean  between  the  lines  CD  and  HG.  At  O  he  will  plant  the 
center  of  the  section  on  such  line  40  chains  government  meas- 
ure from  A.  What  is  here  meant  by  government  measure  is 
that  he  will  regard  the  length  of  his  chain  or  tape  as  ascer- 
tained by  the  test  of  the  lines  CD  and  HG,  and  adjust  it  ac- 
cordingly. He  will  then  run  the  quarter  line  NOP  from  O, 
parallel  to  AH.  Of  course,  the  rule  requires  line  AB  be  run 
due  north  from  A,  but  a  mean  between  lines  CD  and  HG,  parts 
of  the  original  section  lines  on  east  and  west  sides  respectively, 
will  give  the  proper  line.6 

§  516.  Fractional  section  two—  East  part  in  lake—Run 
quarter  lines. — The  south  and  east  one-fourth  corners  and  also 
the  center  of  section  two  of  a  certain  town  were  never  estab- 
lished, being  in  a  lake.  The  north  and  west  quarter  corners 
are  known.  Also  the  northwest  and  southwest  corners  can 
be  found.  How  should  the  quarter  lines  be  run? 

Answer.     From  the  west  quarter  corner  run  the  east  and 

5R.   L.   C.  78-79;   ante   §  36*  6Beardsley    v.    Crane,    52    Minn. 

537,  54  N.  W.  740;  ante  §§  367-9. 


SURVEYING   AND   BOUNDARIES 


482 


west  quarter  line  parallel  to  the  south  boundary  of  the  section. 
From  the  north  quarter  corner  run  the  north  and  south  quarter 
line  parallel  to  the  west  boundary  of  the  section.  Should  this 
section  be  in  a  "fractional  township,"  and  the  lake  in  question 
be  a  part  of  the  east  boundary  of  such  township,  then  the  quar- 

H  G, 


ter  lines  above  referred  to  should  be  run  according  to  Section 
2396  of  the  United  States  statutes,  i.  e.  The  north  and  south 
quarter  line  should  be  run  due  south  from  the  north  quarter 
corner  until  it  intersects  the  lake,  and  the  east  and  west  quar- 
ter line  should  run  due  east  from  the  west  quarter  corner  until 


483  ANSWERS    TO   QUESTIONS  §    517 

it  intersects  the  lake.     As  to  first  proposition  see  Fig.   104. 
Run  BE  parallel  to  CD.     Run  HF  parallel  to  AC.7 

§  517.  "More  or  less  according  to  the  United  States  sur- 
vey."— A  piece  of  land  is  sold  and  described  in  the  deed  as, 
"Commencing  at  the  south  quarter  post  of  section  26,  of  a 
certain  town  and  range,  running  thence  east  along  the  section 
line  1 20  rods;  thence  north  160  rods;  thence  west  120  rods; 
thence  south  160  rods  to  the  place  of  beginning;  containing 
1 20  acres,  more  or  less  according  to  the  United  States  survey." 
The  closing  words  of  the  description  clearly  indicate  that  the 
measurements  are  to  be  made  "according  to  government  sur- 
vey." Hence  the  distances  should  be  proportional  according 
to  that  survey.  Suppose  the  present  measurement  for  above 
section  gives  the  distance  between  the  southeast  corner  of  the 
section  and  the  south  quarter  corner  as  40.20  chains.  By 
computation  we  find  the  indicated  tract  would  measure  30.15 
chains  along  the  south  line  of  section.  In  order  to  find  north 
side  of  SE  1/4  government  measure,  take  the  mean  length 
(government"  measure)  of  the  north  line  of  NE  1/4,  40  chs. 
and  the  south  line  of  SE  1/4,  40  chains,  which  will  give 
such  distance.  If  the  north  line  of  NE  1/4  is  40.00  chains,  and 
the  south  line  of  SE  1/4  is  40.00  chains,  the  mean  would  be 
40.00  chains.  This  would  be  the  length  of  the  north  line  of 
SE  1/4.  The  present  measure  of  the  north  side  of  SE  1/4  is 
40.25  chains.  By  computation,  it  will  be  found  that  the  length 
of  the  north  side  of  the  tract  in  question  would  be  30.1875 
chains.  Hence  the  NE  corner  of  the  tract  would  be  30.1875 
chains  east  of  the  center  of  the  section  and  the  SE  corner 
would  be  30.15  chains  east  of  the  south  quarter  corner.  The 
length  of  the  tract  north  and  south  being  one  hundred  and 
sixty  rods  "according  to  government  measure"  it  must  neces- 
sarily be  bounded  on  the  north  by  the  east  and  west  quarter 
line  and  on  the  south  by  the  south  boundary  of  the  section. 

7R.  L.  C.  78-79;  ante  §§  367-9. 


§  Si7 


ANSWERS    TO    QUESTIONS 


484 


See  Fig.  105.  Corners  can  all  be  found.  The  line  AB  should 
be  the  eastern  boundary  of  the  tract  described  in  the  deed. 
Where  the  description  is  by  metes  and  bounds  and  there  is 
nothing  in  the  description  to  show  that  measurement  is  to  be 
made  according  to  "government  survey,"  it  is  quite  likely  the 


40.30 


4O.25 


30  18  H 


30.15 


,-B 


Fiq.105 


40  20 


courts  would  construe  the  description  to  mean  the  exact  dis- 
tance unless  in  applying  the  description  to  the  tract  of  land  a 
different  meaning  was  evident. 


485 


ANSWER   TO   QUESTION 


§    518 


§518.    The  north  eighty  acres  of  N.  W.  J4  of  section  five.— 

A  owned  the  N.  W.  1/4  of  section  five  in  a  certain  township. 
The  section  was  fractional  and  the  quarter  in  question  over- 
runs. He  sold  the  "north  80  acres"  *  *  *  "according  to 
government  survey"  to  B.  How  should  it  be  surveyed? 
G  40.10  A  *VO  10  0 


H 


o 

csj 


O 
csj 


O 

CVJ 


O 

OJ 


B 


o 
o 


o 
o 

6 
t 


39.75 


39  75 


Fiq.106 


Answer.  The  reading  of  the  description  indicates  that  the 
parties  intended  the  transfer  to  cover  a  proportional  amount 
of  all  of  the  land  in  that  quarter.  Hence,  the  measurements 
should  be  proportional  "according  to  government  survey/' 
And  generally  where  there  is  nothing  in  a  description  to  indi- 


§  519 


SURVEYING  AND  BOUNDARIES 


486 


cate  a  different  intention,  similar  descriptions  are  to  be  con- 
strued as  carrying  the  particular  part  of  a  subdivision  of  the 
government  survey.  The  description  and  surrounding  circum- 
stances should  be  carefully  studied. 

D  39.10  C  4-0 


o 

ro 

6 

sf- 


A 


r1 


•6- 


B 


o 

oj 


* 


39.  Z5 


H 


Fiq.107 


40 


§  519.  Quarter-quarter  corner  in  fractional  section. — Re- 
ferring to  Fig.  1 06,  how  is  the  quarter-quarter  corner  E  to  be 
located  ?  The  distances  returned  by  the  government  surveyors 
are  given  on  the  plat.  Of  course,  this  corner  must  be  located 


487  ANSWERS    TO    QUESTIONS  §    521 

20  chains  government  measure  north  of  the  center  of  the  sec- 
tion. But  the  government  surveyors  did  not  give  any  distance 
of  the  line  AB.  You  will  first  establish  the  center  of  the  sec- 
tion. Then  determine  AB,  government  measure  by  a  mean 
between  HG  and  CD.  HG  is  40.20  chs.  and  CD  40.10  chs. 
Hence  AB  would  be  40.15  chains,  government  measure.  We 
will  suppose  the  surveyor  makes  this  distance  40.30  chains. 
Then  40.15  :  40.30  ::  20  :  X.  X  will  be  20.07  4/IO«  You 
will,  therefore  establish  E  at  20.07  4/10,  your  measure  north 
of  the  center  of  the  section.  This  would  be  20  chains  govern- 
ment measure.8 

§  520.  Quarter-quarter  corner  west  half  section  six. — 
Referring  to  Fig.  107,  and  assuming  the  government  distances 
are  as  given  on  the  plan,  how  should  the  "quarter-quarter  cor- 
ner E  be  established  ?  This  should  be  established  in  the  same 
way  indicated  in  the  previous  proposition.  Find  the  mean  of 
DC  and  GH.  DC  is  39.10  and  GH  is  39.25,  government  meas- 
ure. This  would  give  39.17  1/2  chs.  for  AB.  Then  assuming 
that  the  surveyor  makes  the  distance  AB  39.30  chains,  you 
will  have  this  proportion:  39.175  :  39.30  ::  20  :  X.  By 
computation  X  equals  20.06  3/10  chains.  You  will  establish 
E  20.06'  3/10  chains  west  of  the  center  of  the  section.  The 
same  rule  will  apply  in  establishing  the  quarter-quarter  cor- 
ners in  all  of  the  sections  on  the  north  and  west  sides  of  the 
township,  unless  the  section  happens  to  be  further  complicated 
by  a  lake  or  some  body  of  water,  which  may  possibly  make 
the  application  of  a  different  rule  necessary.9 

§  521.  Quarter  corners  north  and  west  sides  of  section 
six. — This  is  a  case  where  no  quarter  corners  were  planted  on 
the  north  or  west  sides  of  the  section.  Referring  to  Fig.  108, 
the  distances  returned  by  the  government  surveyor  are  given 
thereon.  A  recent  measurement  of  the  north  side  of  this  sec- 

8R.  L.  C.  80;  ante  §  368. 
»R.  L.  C.  80;  ante  §  368. 


§ 


SURVEYING  AND  BOUNDARIES 


488 


tion  gives  a  distance  of  79.40  chains,  and  of  the  west  side  of 
the  section  gives  a  distance  of  80.50  chains.  Directions :  Run 
a  direct  line  between  A  and  B  and  plant  west  quarter  corner 
on  this  line  at  40  chains,  government  measure,  north  of  the 
S.  W.  corner  of  the  section.  The  proportion  to  determine  on 

B  79.10  C 


o 

ro 


oc 


Rq.108 


the  data  will  be:  80.30  :  80.50  ::  40  :  X.  X  equals  40.09 
9/io.  Plant  corner  D  at  40.09  9/10  chains  new  measure- 
ment, north  of  the  S.  W.  corner  of  section,  on  a  direct  line 
between  the  two  section  corners.10 

10Ante  §  368. 


489  %  ANSWERS   TO   QUESTIONS  §    523 

Proceed  in  the  same  manner  to  establish  the  corner  at  E. 
The  proportional  for  the  latter  corner  will  be:  79.10  :  79.40 
::  40  :  X.  X  equals  40.15  i/io.  Plant  E  40.15  i/io  chains 
new  measurement  west  of  the  N.  E.  corner  of  the  section,  oh 
a  direct  line  between  the  two  section  corners.11 

§  522.  Quarter  corners,  other  than  six  on  north  and  west 
sides  township. — Where  the  government  surveyors  failed  to 
return  quarter  corners  on  the  north  and  west  sides  of  a  town- 
ship, other  than  section  6,  the  surveyor  will  plant  such  quarter 
corner  on  a  direct  line  between  the  section  corners  and  equidis- 
tant therefrom.  This  is  the  general  rule.  There  may  be  in- 
stances by  reason  of  bodies  of  water  or  external  obstacles  such 
as  form  a  "fractional  township"  where  a  different  rule  might 
apply.12 

§  523.  Lost  quarter  corner,  west  side  of  section  two. — In 
reestablishing  a  lost  quarter  corner  on  a  north  and  south  sec- 
tion line,  any  difference  in  the  length  of  such  line  by  actual 
measurement,  as  compared  to  that  indicated  by  the  government 
survey,  should  be  distributed  between  its  north  and  south  parts 
in  proportion  to  their  respective  lengths  as  indicated  by  the 
same  survey,  and  the  whole  deficiency  should  not  be  thrown 
on  the  north  half  of  the  section.13  In  the  case  just  cited,  the 
west  quarter  corner  of  section  2  was  lost.  The  recent  meas- 
urement did  not  agree  with  the  former  measurement.  Fig. 
109. 

Suppose  in  a  given  case  the  government  survey  of  the  west 
side  of  section  2  gave  a  length  of  79.80  chains,  and  the  recent 
measurement  a  length  of  80.20  chains.  Then  by  computation 
the  west  quarter  corner  of  the  section  would  be  40.20  chains 
(new  measurement)  north  of  the  southwest  corner  of  the  sec- 
tion. Such  lost  corner  should  be  re-established  in  a  direct  line 
between  the  northwest  and  southwest  corners  of  said  section 

11  Ante  §  368.  13Jones  v.  Kimble,  19  Wis.  429; 

i2R.  L.  C.  77;  ante  §  366.  R.  L.  C.  59;  ante  §  355 


§  524 


ANSWERS   TO   QUESTIONS 


490 


2  and  40.20  chains  new  measurement  north  of  the  southwest 
corner  of  the  section.14 

§  524.     Lost  interior  section  corners  common  to  four  sec- 
tions.— In  the  event  such  corner  can  not  be  found  after  the 


CO 

oS 

CO 


o 
o 


oj 


Rcj  100 


surveyor  has  made  a  most  thorough  search  as  laid  down  by 
the  government  rules,  he  should  proceed  as  follows :  First : 
Measure  from  the  first  known  corner  west  to  the  first  known 
corner  east  of  the  lost  corner,  and,  in  a  direct  line,  plant  a 
temporary  corner  at  the  required  distance  as  determined 


14R.  L.  C.  49;  ante  §  349. 


491 


ANSWERS   TO   QUESTIONS 


§    524 


proportionately  to  the  original  survey.  Second :  Measure 
from  the  first  known  corner  south  of  the  lost  corner  to  the 
first  known  corner  north  thereof,  and  in  a  direct  line  plant  a 
temporary  corner  at  the  required  distance  as  determined,  pro- 
portionately to  the  original  survey.  Third :  From  the  tem- 
porary corner  so  set  on  the  east  and  west  lines  run  a  line  due 


Rq.110 


north  or  south  far  enough  to  intersect  a  line  run  east  or  west, 
as  the  case  may  be,  from  the  temporary  corner  on  the  north 
and  south  line  of  the  section.  Fourth:  From  the  temporary 


§    525  SURVEYING  AND  BOUNDARIES  492 

corner  set  on  the  north  and  south  line  run  a  line  east  or  west, 
as  the  case  may  be,  until  it  intersects  the  north  and  south  line 
run  from  the  other  temporary  corner.  The  point  of  intersec- 
tion of  the  two  lines  will  be  the  required  corner. 

As  an  illustration,  suppose  the  corner  common  to  sections 
10,  n,  14  and  15,  Fig.  no,  is  lost.  We  will  assume  that  the 
first  quarter  corner  north,  and  the  first  quarter  corner  east  of 
the  lost  corner  are  known;  that  the  first  section  corner  west 
and  the  first  section  corner  south  are  the  nearest  known  cor- 
ners in  those  directions.  In  the  diagram  "A"  represents  the 
lost  section  corner;  "E"  the  first  quarter  corner  north  and  "H" 
the  first  quarter  corner  east,  both  known ;  "F"  represents  the 
southwest  corner  of  Section  10  and  "G"  the  southeast  corner 
of  Section  15,  the  first  known  corners  west  and  south  respec- 
tively of  the  lost  corner. 

The  surveyor  will  proceed  as  follows :  First :  Measure  from 
F  to  H  and  plant  a  temporary  corner  at  C,  determined  by  pro- 
portional measurement,  using  original  government  distance  as 
a  basis.  Second :  Measure  from  G  to  E  and  plant  a  tempo- 
rary corner  at  B,  determined  by  proportional  measurement,  us- 
ing original  government  distance  as  a  basis.  Third:  From 
the  temporary  corner,  C,  run  a  line  due  north  to  intersect  east 
and  west  line  run  from  B.  Fourth :  From  the  temporary 
corner  B  run  a  line  due  west  until  it  intersects  the  line  run 
from  C  to  A,  which  will  be  the  section  corner  required.15 

§  525.  Lost  corners  common  to  four  sections  on  town  or 
range  line. — Lost  corners  common  to  four  sections  on  town  or 
range  line  will  be  re-established  in  the  same  manner  laid  down 
in  the  preceding  paragraph.16  "From  this  rule  there  can  be 
no  departure,"  say  the  instructions. 

§  526.  Lost  corner  common  to  two  sections  only  on  town 
or  range  line. — In  this  instance  measure  the  distance  between 

15R.  L.  C.  29;  R.  L.  C.  51-52-56;          16R.  L.  C.  29;  ante  §  343- 
ante  §  356. 


493  ANSWERS   TO   QUESTIONS  §    530 

the  nearest  known  corners  on  opposite  sides  of  the  lost  corner 
and  re-establish  such  lost  corner  in  a  direct  line  between  such 
known  corners  at  a  point  indicated  by  proportional  measure- 
ments, using  the  original  government  distance  as  a  basis. 
Measurements  to  check  its  position  should  be  made  to  corners 
within  the  townships  adjacent.17 

§  527.  Where  section  lines  are  not  due  lines. — Where  sec- 
tion lines  are  not  due  lines,  and  they  are  seldom  so,  in  order  to 
carry  out  the  spirit  of  Sec.  2396  United  States  statutes  per- 
taining to  subdivision  of  fractional  sections  in  "fractional 
townships,"  it  will  be  necessary  in  running  such  subdivisional 
lines  to  "adopt  mean  courses,"  making  the  required  line  a 
mean  between  the  section  lines  to  the  east  or  west  or  north  or 
south  thereof,  as  the  case  may  be. 

§  528.  A  lost  closing  corner.— A  lost  closing  corner  from 
which  a  standard  parallel  has  been  initiated  or  to  which  it  has 
been  directed  will  be  re-established  by  proportional  measure- 
ments from  the  corners  used  in  the  original  survey  to  de- 
termine its  position.  The  surveyor  should  not  measure  from 
corners  on  the  opposite  sides  of  the  parallel  in  such  cases.18 

§  529.  A  lost  standard  corner. — A  lost  standard  corner  will 
be  restored  by  proportionate  measurements  on  the  line,  con- 
forming as  near  as  possible  to  the  original  field-notes  and 
joining  the  nearest  identified  original  standard  corners  on 
opposite  sides  of  the  lost  corner.19 

§  530.  Restoration  of  township  corners  common  to  four 
townships. — (a)  Where  position  of  original  corner  was  made 
to  depend  on  lines  crossing  at  right  angles  to  each  other. 
First:  Run  line  connecting  the  nearest  identified  corners  on 
the  meridional  township  line  north  and  south  of  the  missing 
corner  and  place  temporary  corner  at  the  proper  proportional 
distance.  Second :  Run  a  line  connecting  the  nearest  known 

"R.  L.  C.  34;  ante  §  343-  19R-  L.  C.  45;  ante  §  346. 

18R.  L.  C.  47  J  ante  §  352. 


§    531  SURVEYING  AND   BOUNDARIES  494 

original  corners  on  the  latitudinal  township  line  east  and  west 
of  the  missing  corner  and  place  a  temporary  corner  at  the 
proper  proportional  distance.  These  temporary  corners  should 
be  established  without  regard  to  each  other.  Third :  Through 
first  temporary  corner  run  a  line  east  or  west  to  intersect  a 
line  running  north  or  south,  as  the  case  may  be,  through  the 
second  temporary  corner.  The  intersection  of  the  two  lines 
will  be  the  corner.20 

(b)  Where  position  of  original  corner  was  located  by 
measurements  on  one  line  only,  run  a  direct  line  between 
the  nearest  original  known  corners  east  and  west  or  north  and 
south  of  the  lost  corner  and  establish  such  corner  at  a  propor- 
tional distance  on  such  line.21 

§  531.  Re-establishment  of  lost  closing  corner. — The  rules 
provide  that  the  distance  from  a  closing  corner  to  the  nearest 
standard  corner  on  such  base  or  standard  line  shall  be  care- 
fully measured  and  noted.22  To  re-establish  measure  from  the 
quarter-section,  section  or  township  corner  east  or  west  as  the 
case  may  be,  to  the  next  preceding  or  succeeding  corner  in 
the  order  of  original  establishment  and  establish  the  lost  clos- 
ing corner  by  proportionate  measurement.23  If  the  distance 
between  the  double  corners  is  not  given;  neither  the  distance 
east  or  west  of  the  missing  corner,  the  surveyor  should  com- 
pute the  latter  distance  by  a  reference  to  the  areas  of  the 
adjacent  subdivisions.  After  this  has  been  done,  he  can  re-es- 
tablish the  missing  corner  by  a  proportionate  computation.24 

§  532.  Re-establishment  of  meander  corners. — Two  prop- 
ositions arise,  (a)  To  establish  from  a  known  quarter  cor- 
ner on  the  line  approaching  the  meander  corner :  Before  pro- 
ceeding with  re-establishment  the  surveyor  should  carefully 
rechain  at  least  three  of  the  section  lines  between  known  cor- 

2°Ante  §  35o;  ante  §  524-  23R.  L.  C.  55- 

21  Ante  §  350;  ante  §  526.  24R.  L.  C.  58;  ante  §  357- 

"Manual  143   (1902). 


495 


ANSWERS    TO   QUESTIONS 


§  532 


ners  of  sections  in  the  same  township  within  which  the  lost 
comer  is  to  be  re-established.  In  this  manner,  he  will  find 
the  proportional  measurement  to  be  used.  He  should  also 
ascertain  the  real  course  used  by  the  original  surveyor.  In 
the  instant  case,  it  will  be  indicated  by  the  course  of  the  line 


e- 


6 


Fiq.111 


between  the  known  quarter  corner  and  the  known  section  cor- 
ner on  the  opposite  side  of  such  quarter  corner.  Such  line 
should  be  prolonged  from  the  quarter  corner  to  the  lake  or 
other  boundary  line,  and  the  meander  corner  established  on 


§    533  SURVEYING  AND  BOUNDARIES  496 

such  line  at  the  ascertained  proportional  distance  from  the 
quarter  corner.  Referring  to  Fig.  in,  C  represents  the  lost 
corner.  The  quarter  corner  B  and  the  Section  Corner  A  are 
known.  Prolong  AB  to  C  and  plant  C  at  a  proportional  dis- 
tance from  B  as  outlined  herein. 

(b)  To  establish  from  a  known  section  corner  on  the  line 
approaching  the  lost  meander  corner,  ascertain  the  real 
course  used  by  the  original  surveyor  and  test  the  course  by 
known  lines  in  sections  in  the  same  township.  Take  the  aver- 
age of  several  courses  and  run  a  line  on  the  course  so  deter- 
mined from  the  section  corner  to  the  lake  or  other  boundary 
and  plant  the  corner  on  said  line  at  the  proportional  dis- 
tance from  said  section  corner,  as  determined  by  test  propor- 
tional measurements.  Referring  to  Fig.  in,  E  represents  the 
lost  meander  corner;  D  the  known  section  corner.  The  field- 
notes  show  the  line  DE  to  have  been  run  originally  due  north 
and  south.  Determine  the  average  course  of  at  least  three 
known  lines  in  sections  in  same  township.  Suppose  such  aver- 
age shows  a  course  of  N  40'  E  instead  of  due  north.  Hence, 
the  surveyor  will  run  a  line  S  40'  W  from  D,  which  would  be 
equivalent  to  the  government  course  of  due  north  and  south, 
to  the  lake  or  other  boundary.  He  will  plant  the  established 
corner  on  such  line  at  an  average  proportional  distance  from 
section  corner  D.25 

§  533.  To  re-establish  one  of  two  double  corners. — The 
surveyor  should  first  determine  to  which  sections  the  known 
double  corner  belongs.  Having  so  determined,  he  will  establish 
the  missing  double  corner  in  line  between  the  known  double 
corner  and  the  nearest  original  corner  on  the  opposite  side  of 
such  missing  corner,  at  a  proportionate  distance  according  to 
government  survey.  This  on  the  theory  that  the  field-notes 
give  the  distance  between  such  double  corners.26 

25R.  L.  C.  67-8;  ante  §  362. 
2«R.  L.  C.  62;  ante  §  357- 


497  £<  ANSWERS   TO   QUESTIONS  §    535 

§  534.  Re-establish  double  corner  where  both  are  missing. 
—  (a) To  re-establish  one,  set  when  township  was  run:  Con- 
nect the  nearest  known  corners  on  the  township  line  by  a  right 
line  and  re-establish  the  missing  corner  by  proportionate  meas- 
urements according  to  the  original  survey.  In  this  operation, 
the  surveyor  should  not  confuse  township  corners  with  closing 
corners.  The  corner  thus  restored  will  be  common  to  two  sec- 
tions, either  north  or  west  of  the  township  line.27 

(b)  To  re-establish  the  double  corner,  set  when  the  town- 
ship was  subdivided :  First :  Retrace  the  original  township 
line  according  to  the  field-notes  of  the  original  survey  and  mark 
it  in  the  vicinity  of  the  missing  corner.  Second :  Retrace  the 
section  line  closing  on  the  missing  double  corner  to  an  inter- 
section with  the  township  line  and  set  a  temporary  corner  at 
such  point.  Third :  Carefully  test  the  temporary  corner  at 
point  of  intersection  by  remeasurements  to  objects  and  known 
corners  on  the  township  line  as  noted  in  the  field-notes  of  the 
original  survey.  Fourth:  Make  the  necessary  corrections  in 
the  location  of  the  temporary  corner  as  indicated  by  the  remeas- 
urements, and  erect  a  permanent  corner  at  the  proper  place.28 

§  535.  To  re-establish  one  missing  triple  corner  on  range 
line. — Only  two  of  such  corners  are  common  to  sections;  the 
third  was  established  when  the  range  line  was  run.  (a)  Where 
the  field-notes  give  the  distances  between  the  triple  corners. 
First :  The  surveyor  will  identify  the  existing  corner  or  cor- 
ners in  line  north  or  south  of  the  missing  corner.  Second: 
Re-establish  the  missing  corner  or  corners  in  line  north  or 
south  of  the  known  corners  by  proportional  measurements  ac- 
cording to  the  original  survey  in  the  manner  indicated  in  this 
work  for  re-establishment  of  double  corners.  The  accuracy  of 
the  work  should  be  tested  by  proportional  measurements  to  all 
known  objects  as  noted  in  the  field-notes. 

27R.  L.  C.  63;  ante  §  358. 
28R.  L.  C.  55-64;  ante  §  359- 


§    53^  SURVEYING  AND  BOUNDARIES  498 

(b)  Where  the  field-notes  do  not  give  the  distances  be- 
tween the  triple  corners.  First:  Retrace  the  original  range 
line  and  mark  it  in  the  vicinity  of  the  various  triple  corners. 
Second :  Retrace  the  section  lines  closing  upon  the  missing 
corners  according  to  the  notes  of  the  oiiginal  survey  in  the 
manner  indicated  in  this  work,  placing  temporary  corners  at 
the  point  of  intersection  with  the  range  line.  Third :  Care- 
fully test  the  temporary  corners  at  points  of  intersection  with 
the  range  line  by  measurements  to  objects  and  known  corners 
on  such  line  as  indicated  in  the  field-notes.  Fourth :  Make 
the  necessary  corrections  in  the  location  of  the  temporary  cor- 
ners as  indicated  by  the  remeasurements  and  erect  a  permanent 
corner  in  the  manner  set  out  in  this  work  for  re-establishing 
missing  double  corners.  In  making  these  measurements  the 
surveyor  should  studiously  follow  all  data  concerning  the  lines 
under  consideration  as  recorded  in  the  field-notes.  The  work 
will  be  unsatisfactory  and  the  checks  quite  unreliable  at  the  best, 
as  the  areas  of  adjacent  tracts  as  indicated  on  the  plats  may  be 
incorrect.29 

§  536.  Re-establish  triple  corners  on  range  line  where  all 
are  missing. — First:  Re-establish  the  corners  set  when  the 
range  line  was  run  by  proportional  measurements  as  indicated 
in  this  work  for  restoring  section  and  quarter-section  corners 
on  town  lines.30  Second :  Re-establish  the  two  remaining  cor- 
ners according  to  the  rule  laid  down  in  this  work  for  re-estab- 
lishment of  double  corners.31 

§  537.  To  restore  fractional  section  lines  closing  upon 
reservations  or  grants  to  private  persons. — (a)  Where  the 
point  of  intersection  of  such  line  with  the  boundary  line  was 
indicated  in  the  field-notes  by  distances  to  known  corners  on 
such  boundary  line  and  on  opposite  sides  of  such  point  of  inter- 
section, the  surveyor  will  establish  such  point  on  the  boun- 

29 Ante  §  360.  81R.  L.  C.  66;  ante  §  361. 

s°Ante  §  36 


499  ANSWERS   TO   QUESTIONS  §    539 

dary  line  by  proportional  measurements  to  such  known  cor- 
ners. Connect  the  point  so  fixed  with  the  section  or  quarter- 
section  corner  nearest  thereto  east  or  west  or  north  or  south 
as  the  case  may  be. 

(b)  Where  the  point  of  intersection  of  such  line  with  the 
boundary  line  is  not  indicated  in  the  field  notes  by  distances  to 
known  corners  on  the  boundary  line.  First :  Retrace  the  orig- 
inal boundary  line  as  indicated  by  the  field-notes,  placing-  a 
temporary  mark  in  the  vicinity  of  the  closing  fractional  section 
line.  Second:  Ascertain  the  real  course  used  by  the  original 
surveyor  and  test  the  same  by  taking  the  average  comparative 
course  of  three  or  more  lines  of  sections  in  the  same  township 
and  run  at  the  same  time.  Third:  Using  such  comparative 
average  course,  the  surveyor  will  run  the  required  line  by  such 
course  from  the  nearest  interior  corner  either  known  or  re-es- 
tablished prior  thereto.  Fourth :  Test  the  point  of  intersec- 
tion with  the  Indian  or  other  boundary  line  by  all  possible  pro- 
portional measurements.32  See  DE  Fig.  HI. 

§  538.  Relocation  of  moved  corners. — County  surveyors 
are  frequently  called  upon  to  restore  corners  which  have  been 
moved,  either  by  accident  or  purposely.  In  such  case,  the  sur- 
veyor will  proceed  in  the  same  manner  as  for  the  restoration  of 
lost  corners.  This  may  not  be  very  satisfactory  to  the  owners 
of  the  property  adjacent  to  the  moved  corner  but  it  is  the  only 
thing  to  do,  except  the  interested  parties  may  submit  their  dif- 
ferences to  the  local  courts  for  adjudication.33 

§  539.  To  establish  west  quarter  corner  of  section  six. — 
The  west  quarter  corner  of  section  six  in  a  certain  township  was 
never  established.  The  southwest  corner  and  the  northwest 
corners  of  the  section  are  known.  The  original  measurement 
of  the  west  side  of  the  section  was  78.60  chains  and  recent 
measurement  79.50.  Required  to  establish  the  west  quarter 

32R.  L.  C.  71;  ante  §  363;  ante         33R.  L.  C.  71;  ante  §  363. 
§  532. 


§    54O  SURVEYING  AND  BOUNDARIES  5<X> 

corner.  Operation.  This  quarter  corner  must  be  established 
in  a  direct  line  between  the  two  section  corners,  40  chains  nortn, 
government  measure,  of  the  southwest  corner  of  the  section. 
Therefore,  run  a  direct  line  between  the  two  section  corners 
and  plant  the  quarter  corner  on  said  line  40  chains,  original 
measure,  or  40.458  chains  recent  measure,  north  of  the  south- 
west corner  of  the  section.  The  proportional  statement  to  se- 
cure the  result  would  be :  78.60  Chs.  :  40.00  Chs.  : :  79.50 
Chs.  :  X.  The  surveyor  will  readily  note  that  it  would  not  do 
to  plant  the  corner  40  Chs.  recent  measure  north  of  the  south- 
west corner  of  the  section  unless  the  original  measure  and  the 
recent  measure  were  exactly  the  same.8* 

§  540.  To  establish  1/16  corner  of  same  section  north  of 
the  quarter  corner. — Proceed  as  above  to  establish  the  west 
quarter  corner.  This  would  give  the  distance  between  the 
northwest  corner  of  the  section  and  the  west  quarter  corner, 
government  measure  38.60  chains,  or  recent  measure,  39.50 
chains.  The  1/16  corner  should  be  placed  on  a  direct  line  be- 
tween West  1/4  corner  and  the  northwest  corner  of  the  sec- 
tion, 20  chains  north,  original  measure,  of  the  west  quarter 
corner.  The  original  measure  was  38.60  chains  and  the  recent 
measure  by  computation  is  39.042  chains.  The  proportion 
would  be  38.60  :  20  : :  39.042  :  X.  This  would  give  a  recent 
measure  of  20.229  chains  north  of  the  west  1/4  corner  of  the 
section.  The  west  1/16  corner  of  the  section  south  of  the 
quarter  corner,  of  course,  would  be  midway  on  a  direct  line 
between  the  southwest  corner  of  the  section  and  the  west  1/4 
corner.85 

§  541.  To  establish  north  quarter  corner  of  section  six  in 
a  township  bordering  on  correction  line  north. — In  this  case, 
the  north  quarter  corner  was  never  established.  The  north- 
west and  northeast  corners  of  the  section  are  known.  The 

84 Ante  §   521. 
3RAnte  §  519. 


5OI  ANSWERS   TO   QUESTIONS  §    543 

original  measure  of  the  north  side  of  the  section  was  77.40 
chains.  The  recent  measure  is  78.20  chains.  The  north  quar- 
ter corner  must  be  established  on  a  direct  line  between  the 
section  corners  at  a  point  40  chains,  original  measure,  west  of 
the  northeast  corner  of  the  section.  By  computation,  the 
recent  measure  of  the  distance  west  of  said  corner  would  be 
40.413  chains.  The  proportion  would  be:  77.40  :  40  ::  78.20 
:  X.  This  gives  40.413  chains,  the  distance,  recent  measure, 
of  the  north  quarter  corner,  west  of  the  northeast  corner  of 
the  section.36 

§  542.  To  establish  north  quarter  corner  of  section  five  in 
a  township  bordering  north  on  a  correction  line. — The  north- 
west and  northeast  corners  of  said  section,  we  will  assume,  are 
known.  The  north  quarter  corner  must  be  established  midway 
and  on  a  direct  line  between  such  section  corners.  The  same 
rule  will  apply  to  sections  i,  2,  3,  and  4  of  a  township  similarly 
situated.37 

§  543.  To  re-establish  the  east  quarter  corner  of  section 
five. — In  this  case,  we  will  assume,  the  northeast  and  southeast 
corners  of  the  section  are  known.  The  east  quarter  corner  is 
lost.  The  east  side  of  the  section,  original  measure,  was  74.48 
chains.  The  east  quarter  corner  must  be  placed  on  a  direct 
line  between  the  northeast  and  southeast  corners  of  the  sec- 
tion 40  chains,  original  measure,  north  of  the  southeast  cor- 
ner thereof.  On  running  the  east  side  of  the  section  the  re- 
cent distance  is  found  to  be  74.12  chains.  By  proportion  we 
find  the  east  quarter  corner  should  be  placed  39.806  chains, 
recent  measure,  north  of  the  southeast  corner  of  the  section. 
The  proportional  statement:  74.48  :  40.00  ::  74.12  :  X.  X 
is  found  to  be  39.806  chains.  The  east  and  west  quarter  cor- 
ners of  sections  I,  2,  3,  and  4  similarly  situated,  would  be  re- 
established in  a  like  manner.38 

36 Ante  §  521.  38Ante  §  523. 

"Ante   §   522. 


§    544  SURVEYING  AND  BOUNDARIES  502 

§  544.  Observations  on  different  methods  of  establishing 
quarter-quarter  corners  north  of  center  in  fractional  sections. — 

The  author  has  followed  the  method  of  establishing  such 
quarter-quarter  corners,  which  seemed  to  him  most  equitable 
and  in  harmony  with  the  general  instructions  of  the  land  de- 
partment of  the  government  in  the  subdivisions  of  sections. 
The  reader  is  referred  to  an  earlier  chapter  of  this  work.39 
We  are  not  unmindful  of  the  fact  that  another  method  has 
frequently  been  used,  by  reputable  surveyors,  in  the  locations 
of  such  corners.  The  method  sometimes  used  is  to  fix  the 
i/i 6  corners  on  the  section  lines  opposite  each  other  and  con- 
nect these  i /1 6  corners  by  a  direct  line,  fixing  the  quarter- 
quarter  corner  at  the  point  of  intersection  of  such  line  with 
the  quarter  line. 

In  order  to  get  the  view  point  of  the  land  office,  the  author 
wrote  the  following  letter  to  the  commissioner  of  that  office : 
"Commissioner  of  General  Land  Office.  Dec.  6,  1917. 

Washington,  D.  C. 
"Dear  Sir,— 

In  the  diagram  below,  (Fig.  112),  I  would  thank  you  to 
give  me  the  rule  promulgated  by  your  office  with  reference  to 
establishing  the  N.  W.  corner  of  S.  W.  1/4  of  N.  E.  1/4  of 
section  5  of  a  supposed  township.  Suppose  the  government 
measurements,  in  part,  of  said  section  are  as  follows :  West 
side  of  northwest  quarter  40.10  chains;  East  side  of  N.  E.  1/4 
40.20  chains ;  the  present  measurements  are  as  follows :  West 
side  of  N.  W.  1/4  40.30  chains;  East  side  of  N.  E.  1/4  40.35 
chains;  West  side  of  N.  E.  1/4  40.45  chains. 

There  is  some  authority  for  establishing  point  "A"  on  the 
diagram  (N.  W.  Cor.  of  S.  W.  of  N.  E.)  as  follows:  Com- 
pute government  distance  5~C  (west  side  of  N.  E.  1/4)  by 
making  it  a  mean  between  the  government  measurements  of 
west  side  of  N.  W.  and  east  side  of  N.  E. ;  that  is  a  mean  be- 

»»Ante  Ch.  XV. 


503 


ANSWERS   TO   QUESTIONS 


§    544 


tween  40.20  and  40.10  or  40.15.  Then  take  present  measure- 
ment of  5-C  (40.45  Chs.)  and  establish  "A"  by  proportional 
measurement  of  present  distance  with  the  computed  govern- 
ment measurement.  This  would  make  point  "A"  20.149 


o  u 

*«• 


O 
cvJ 

6 
<H 


Rq.ll'Z 


chains  present  measurement  north  of  center  of  section.   Would 
you  condemn  this  method? 

Of  course,  the  chances  are  this  would  not  fix  said  point,  in 
this  instance,  at  the  same  place  it  would  be  fixed  by  establish- 
ing the  N.  E.  corner  of  S.  E.  of  N.  E.  and  from  that  point 
run  a  line  parallel  with  the  east  and  west  quarter  line  west  until 


§    544  SURVEYING  AND  BOUNDARIES  504 

it  intersects  the  north  and  south  quarter  line.  I  would  like 
your  suggestions  on  this  proposition  and  also  the  manner  laid 
down  by  your  office  in  fixing  point  "A." 

Thanking  you  for  an  early  reply,  I  am, 
Yours  truly, 

F.  E.  CLARK." 

Under  date  of  December  15,  1917,  the  general  land  office 
replied  as  follows: 

"571095  "E"  CGT." 
"Department  of  the  Interior, 
General  Land  Office, 
Washington,  December  15,  1917. 
"Mr.  F.  E.  Clark, 
Attorney  at  Law, 
729  Plymouth  Bldg., 
Minneapolis,  Minn. 
My  Dear  Sir: — 

In  reply  to  your  letter  of  December  6,  1917,  relative  to  the 
procedure  to  be  followed  in  the  establishment  of  the  north- 
west corner  of  the  SW  1/4  NE  1/4  of  a  hypothetical  section, 
you  are  informed  that  the  method  outlined  in  the  second  para- 
graph of  your  letter  is  correct,  and  is  indorsed  by  this  office. 
A  quarter  section  should  properly  be  subdivided  upon  the 
principles  which  are  applied  in  the  subdivision  of  a  full  sec- 
tion, and  consequently,  the  suggestions  contained  in  the  third 
paragraph  of  your  said  communication  can  not  be  approved. 
It  is  true,  moreover,  as  noted  in  your  letter,  that  only  under 
exceptional  conditions  would  the  points  determined  by  the 
two  methods  coincide. 

Very  respectfully, 

D.  K.  PARROTT, 
Acting  Assistant  Commissioner." 


505  -  ANSWERS   TO  QUESTIONS  §    544 

The  government  distances  are  given  within  the  section  lines 
and  present  measurements  are  given  without  the  section  lines 
on  the  diagram. 

In  view  of  the  fact  of  the  approval  of  the  method  laid  down 
in  this  work  for  fixing  the  northwest  corner  of  the  SW  1/4 
of  the  NE  1/4  of  fractional  section  5,  by  the  commissioner  of 
the  general  land  office,  we  advise  that  this  method  be  fol- 
lowed in  all  similar  cases  of  fractional  sections.  It  follows  the 
rule  for  the  subdivision  of  a  full  section  and  is  equitable  to  the 
proprietors  of  the  lands  therein.40 

4°  Ante  §  519. 


CHAPTER  XX 

DEDICATION    AND  ESTOPPEL 

Sec.  Sec. 

545.  Generally.  55 1.     Certain   facts   do  not   consti- 

546.  Dedication  to  public  or  chari-  tute   dedication. 

table  use.  552.     Reservation    of    minerals    in 

547.  Methods  of  dedication.  dedication  of  street 

548.  Dedication    by    plat — Accept-       553.     Estoppel  of  grantee  as  against 

ance.  public. 

549.  What  title  passes?     Status  of       554.     Estoppel     of     proprietor     of 

land.     Rights  of  dedicator.  plat. 

550.  Completed      dedication      irre-       555.    Words  of  dedication. 

vocable — Reverter. 

§  545-  Generally. — One  of  the  important  duties  of  the  sur- 
veyor is  the  surveying  of  lands  into  blocks  and  lots,  the  mak- 
ing and  certification  of  a  plat  of  the  lands  so  surveyed  and 
the  recording  of  the  plat,  in  the  office  of  the  register  of  deeds 
of  the  county  where  the  land  lies.  That  subject  will  be  con- 
sidered in  a  later  chapter  of  this  work.1  However,  the  sub- 
ject of  dedication  and  estoppel  is  closely  connected  therewith 
and  naturally  requires  brief  consideration  in  this  work.  We 
propose  to  treat  this  subject  briefly  and  will  inquire  into  dedi- 
cations, express  and  implied,  and  will  consider  what  acts  may 
result  in  a  dedication  of  a  part  of  the  lands  of  which  title  may 
be  in  the  donor. 

Dedication  implies  a  donor  and  a  donee.  The  owner  of 
land  may  dedicate  the  whole  or  any  part  thereof  to  a  munici- 
pality, to  a  religious  organization,  to  a  college  or  school,  in  fact, 
to  a  public  or  charitable  purpose  unless  forbidden  by  statute. 
No  consideration  is  necessarv  to  oass  to  the  donor,  except  that 

Ch.  XXIII. 

506 


507          v  DEDICATION   AND   ESTOPPEL  §    547 

to  make  a  legal  dedication  there  should  be  an  acceptance  there- 
of by  the  donee.  Such  acceptance  may  be  implied.  After  a 
dedication  to  the  public  has  been  made  and  accepted,  every 
member  of  that  public  has  an  interest  in  the  thing  dedicated — 
not  an  individual  interest,  but  one  in  common  with  the  public 
generally. 

§  546.  Dedication  to  public  or  charitable  use. — Dedication 
is  an  appropriation  of  land  to  some  public  or  charitable  use  by 
its  owner,  such  owner  reserving  to  himself  no  interest  in  the 
soil  other  than  such  as  are  consistent  with  the  full  enjoyment 
of  such  public  or  charitable  use.2  The  principle  of  the  dedica- 
tion of  land  to  the  public  use  is  of  very  ancient  origin  and  evi- 
dently has  been  practiced  since  private  individuals  were  per- 
mitted to  own  land.  However,  the  law  of  dedication  may  be 
said  to  be  of  purely  common-law  origin.3  The  gist  of  dedica- 
tion is  that  it  must  be  for  the  use  of  the  public  at  large  and  not 
for  a  mere  private  purpose.4  However,  the  principle  has  been 
invoked  to  uphold  gifts  for  pious,  charitable,  church,  school, 
cemetery  and  similar  uses,  even  though  the  benefits  are  to  be 
enjoyed  by  a  limited  class  only,  and  not  by  the  public  at  large.5 

§  547-  Methods  of  dedication. — It  is  unnecessary  that  there 
be  a  writing  to  effect  dedication.  Anything  which  evidences 
the  intention  of  the  owner  to  give  and  the  public  or  charity  to 
accept  the  gift  is  sufficient.6  Dedication  may  be  made  with 
or  without  writing  by  any  act  of  the  owner.  Throwing  open 
land  to  the  public  travel,  platting  and  selling  lots  bounded  by 

2Bessemer    Land    and    Improve-  4Hall  v.  McLeod,  2.  Mete.   (Ky.) 

ment  Co.  v.  Jenkins,  in   Ala.  135,  98,  74  Am.  Dec.  400. 

18  So.  565,  56  Am.  St.  26;  Bushnell  5Davidson  v.  Reed,   in   111.   167, 

v.  Scott,  21  Wis.  451,  94  Am.  Dec.  53  Am.  Rep.  613 ;  Deepwater  R.  Co., 

555;   Benn  v.   Hatcher,  81   Va.  25,  v.  Honaker,  66  W.  Va.  136,  66  S. 

59  Am.  Rep.  645.  E.   104,  27  L.  R.  A.   (N.  S.)   388. 

3Gowen  v.  Philadelphia  Exchange  6Vick     v.     Vicksburg,     i     How. 

Co.,  5  Watts  &  S.  (Pa.)  141,  40  Am.  (Miss.)     379,    31    Am.    Dec.    167; 

Dec.  489.  Marion  v.   Skillman,   127  Ind.   130, 

26  N.  E.  676,  ii  L.  R.  A.  55. 


§    54-8  SURVEYING  AND  BOUNDARIES  508 

streets,  designated  on  the  plat  as  such,  or  acquiescence  in  the 
use  of  the  land  by  the  public  or  the  charity  are  acts  of  dedica- 
tion.7 The  intention  of  the  owner  to  set  apart  the  land  to 
the  particular  use  is  the  gist  of  the  act.  Intention  may  be 
shown  by  a  writing  or  by  parol.8  The  statute  of  frauds  does 
not  apply  to  a  dedication  of  land  to  the  public  or  charitable 
use.9 

§  548.  Dedication  by  plat  —  Acceptance.  —  The  dedication 
of  land  by  plat  of  the  owner  is  the  most  common  manner  of 
setting  off  property  to  the  use  of  the  public  and  that  which 
most  concerns  surveyors.  As  is  well  known  such  dedications 
are  effected  by  designating  on  the  plat  the  streets,  parks, 
squares,  school  sites,  church  sites,  library  sites,  city  hall  sites, 
etc.10  In  some  states  the  acknowledgment  and  recording  of  a 
plat  is  equivalent  to  a  transfer  of  the  parts  designated  thereon 
for  public  use.  The  theory  is  that  the  public  is  presumed  to 
have  accepted  the  property  so  dedicated,  especially  where  there 
is  no  consideration  to  be  paid  or  no  obligation  on  the  part  of 
the  public  to  do  or  not  to  do  certain  things.11  Acceptance  in 
some  form  seems  to  be  essential.12  Acceptance  inferred  by 
use  of  street  dedicated.13 

Acceptance   is  practically   implied   in   some   cases.14     But, 


Erie,  etc.,  R.  Co.  v.  Witham,  716,  21  Ann.   Cas.  684;   Thousand 

155  111.  514,  40  N.  E.  1014,  46  Am.  Island   Park  Assn.  v.  Tucker,   173 

St.  355,  28  L.  R.  A.  612.  N.  Y.  203,  65  N.  E.  975,  60  L.  R. 

8Gentleman  v.  Soule,  32  111.  App.  A.  786. 

271,  83  Am.  Dec.  264;  Edwards  &  "Carroll  v.  Village  of  Elmwood, 

Walsh  Construction  Co.  v.  Jasper  88  Nebr.  352,   129  N.  W.   537,  33 

Co.,  117  Iowa  365,  90  N.  W.  1006,  L.  R.  A.  (N.  S.)  1053;  Whiting  v. 

94  Am.  St.  301.  Hoglund,  127  Wis.  135,  106  N.  W. 

9Hayes  v.   Livingston,  34  Mich.  3Qi,  7  Ann.  Cas.  224. 

384,  22  Am.  Rep.  533.  12Mahler  v.  Brumder,  92  Wis.  477, 

"People  v.  Wolverine  Mfg.  Co.,  66  N.  W.  502,  31  L.  R.  A.  695. 

141  Mich.  455,  104  N.  W.  725,  113  13Mahler  v.  Brumder,  92  Wis.  477, 

Am.  St.  544;  Porter  v.  International  66  N.  W.  502,  31  L.  R.  A.  695. 

Bridge  Co.,  200  N.  Y.  234,  93  N.  E.  "Wallace  v.  Cable,  87  Kans.  835, 


5°9 


DEDICATION   AND  ESTOPPEL 


§  549 


nevertheless,  there  must  be  some  kind  of  acceptance.15  Ac- 
ceptance need  only  be  made  within  a  reasonable  time.16  In 
absence  of  statutory  requirement  formal  acceptance  is  not  gen- 
erally necessary,  but  it  may  be  necessary  in  order  to  render  a 
municipality  liable  for  up-keep.17  The  authorities  do  not  seem 
to  be  uniform  as  to  implied  acceptance  by  user  but  the  later 
cases  sustain  the  doctrine  that  dedication  may  be  accepted  by 
long  continued  public  user.18 

§  549.  What  title  passes?  Status  of  land:  Rights  of  dedica- 
tor.— Title  need  not  vest  in  the  intended  use.  The  fee  may 
remain  in  the  donor,  subject  to  an  easement  in  the  donee.19 
Whether  or  not  title  passes,  the  land  is  held  in  trust  for  the 
use  intended,  and  the  dedicatee  can  not  divest  itself  of  its  hold- 
ing.20 The  dedicator  may  prescribe  limitations  on  the  gift.21 
The  state  can  not  destroy  the  trust.22  A  city  may  build  a  wharf 
on  a  dedicated  street  bordering  on  a  navigable  stream.23 

The  dedicator  may  maintain  suit  to  restrain  a  violation  of 
the  restriction  in  the  gift.24  It  is  held  in  some  jurisdictions 
that  third  persons  may  maintain  such  suit.25  But  this  is  denied 


127  Pac.  5,  42  L.  R.  A.  (N.  S.) 
587. 

15People  v.  Reed,  81  Cal.  70,  22 
Pac.  474,  15  Am.  St.  22. 

16Lee  v.  Harris,  206  111.  428,  69 
N.  E.  230,  99  Am.  St.  176. 

17Downend  v.  Kansas  City,  156 
Mo.  60,  56  S.  W.  902,  51  L.  R.  A. 
170. 

18Bessemer  Land  and  Improve- 
ment Co.  v.  Jenkins,  in  Ala.  135, 
18  So.  565,  56  Am.  St.  26. 

19Hoboken  M.  E.  Church  v.  Ho- 
boken,  33  N.  J.  L.  13,  97  Am.  Dec. 
696;  White  v.  Jefferson,  no  Minn. 
276,  124  N.  W.  373,  125  N.  W.  262, 
32  L,  R.  A.  (N.  S.)  778. 


20Sears  v.  Chicago,  247  111.  204, 
93  N.  E.  158,  139  Am.  St.  319,  20 
Ann.  Cas.  539 ;  Gaskins  v.  Williams, 
235  Mo.  563,  139  S.  W.  117,  35  L. 
R.  A.  (N.  S.)  603. 

21South  Parks  Comrs.  v.  Ward, 
248  111.  299,  93  N.  E.  910,  21  Ann. 
Cas.  127. 

22St.  Paul  v.  Chicago  Ry.  Co., 
63  Minn.  330,  63  N.  W.  267,  65  N. 
W.  649,  68  N.  W.  458. 

23Backus  v.  Detroit,  49  Mich,  no, 
13  N.  W.  380. 

24Daniels  v.  Chicago  Ry.  Co.,  35 
Iowa  129,  14  Am.  Rep.  490. 

25Davenport  v.  Buffington,  97 
Fed.  234,  46  L.  R.  A.  377. 


§    55°  SURVEYING  AND  BOUNDARIES  510 

in  other  states.26  Generally  the  dedicator  may  withdraw  his 
offer  before  acceptance.27 

In  a  Minnesota  case,  A  platted  a  tract  of  land  as  "A's  addi- 
tion," the  plat  showing  streets.  In  1889,  one  of  the  streets 
was  duly  vacated  and  a  record  of  such  vacation  was  made. 
In  1892,  A  conveyed  to  B  lots  23  and  24  of  said  plat  between 
which  said  vacated  street  originally  was  laid.  In  1906,  A's 
trustee  conveyed  to  C  by  metes  and  bounds  the  vacated  street 
between  the  said  lots  23  and  24.  It  was  held  in  a  contest  be- 
tween B  and  C  that  B  secured  title  only  to  the  two  lots  as 
originally  bounded  and  that  his  deed  did  not  carry  the  street 
as  originally  laid  out  and  that  the  deed  to  C  did  carry  the 
vacated  street.28  Had  the  deed  to  B  been  executed  before  the 
vacation  of  the  street  it  is  likely  that  it  would  have  carried 
title  to  the  center  of  the  street  subject  to  the  public  easement, 
and  that  upon  vacation,  the  title  would  be  in  B  freed  from  any 
other  interest.29 

§  550.  Completed  dedication  irrevocable — Reverter. — A 
dedication  once  made  and  accepted  is  irrevocable.30  Generally 
the  land  will  revert  to  dedicator  when  the  specified  use  becomes 
impossible,  or  when  there  has  been  an  abandonment  by  dedi- 
catee.31 A  court  of  equity  can  not  extinguish  the  right  of 
reversion.82  The  right  of  reversion  is  an  important  one :  The 
donor  may  justly  complain  of  acts  inconsistent  with  the  trust. 
If  the  use  is  specifically  set  out  in  the  instrument  of  trust  or 
donation,  that  governs. 

26Smith  v.  Heuston,  6  Ohio  101,  30Marion    v.    Skillman,    127    Ind. 

25  Am.   Dec.  741.  130,  26  N.  E.  676,  11  L.  R.  A.  55; 

"People  v.  Reed,  81  Cal.  70,  22  Webb   v.   Demopolis,  95   Ala.    116, 

Pac.  474,  15  Am.  St.  22.  13  So.  289,  21  L.  R.  A.  62. 

28White  v.  Jefferson,   no  Minn.  31Newark  v.  Watson,  56  N.  J.  L. 

276,  124  N.  W.  373,  125  N.  W.  262,  667,  29  Atl.  487 ;  Campbell  v.  City 

32  L.  R.  A.  (N.  S.)   778.  of  Kansas,  102  Mo.  326,  13  S.  W. 

29White  v.  Jefferson,  no  Minn.  897,  10  L.  R.  A.  593. 

276,  124  N.  W.  373,  125  N.  W.  262,  32Board    of    Education    v.    Van 

32  L.  R.  A.  (N.  S.)  778.  Wert,  18  Ohio  St.  221,  98  Am.  Dec. 

114. 


511     -,•        DEDICATION  AND  ESTOPPEL  §  553 

§  551.  Certain  acts  do  not  constitute  dedication. — The  des- 
ignation of  the  margin  of  a  navigable  stream  by  parallel  lines 
upon  the  plat  of  a  city  addition  does  not  operate  as  a  dedica- 
tion of  the  land  between  such  lines  to  the  public.  Such  platted 
river  lines  only  indicate  where  the  owner  expected  the  river  to 
be  when  improved,  and  do  not  limit  the  boundaries  of  lots, 
which  will  extend  to  the  river,  notwithstanding  the  plat  lines. 
A  riparian  proprietor  upon  a  river  owns  to  the  center  thereof, 
subject  to  the  easement  of  the  public,  over  the  navigable  por- 
tion of  the  stream.  Such  an  owner,  on  a  navigable  stream, 
has,  without  legislative  authority,  a  right  to  erect  docks  and 
wharves,  conforming  to  the  regulations  of  the  state,  for  the 
protection  of  the  public,  and  to  so  place  them  as  to  have  the 
benefit  of  the  navigable  part  of  the  stream.  Such  right  to 
build  docks  terminates  at  the  point  of  navigation.33 

One  who  grants  land  as  bounding  on  a  street,  and  owns  the 
strip  of  land  so  described  as  a  street,  can  not  be  compelled  in 
equity,  at  the  suit  of  the  grantee,  to  open  and  maintain  the 
strip  "as  a  street  fit  for  travel."34 

§  552.  Reservation  of  minerals  in  dedication  of  street. — A 
conveyance  of  land  bounded  by  a  public  street,  carries  the 
title  to  the  center  of  the  street,  unless  the  contrary  is  clearly 
expressed.  Where  the  owner  of  platted  land  dedicated  the 
streets  to  the  public,  reserving  the  minerals  therein,  with  the 
right  to  mine  the  same,  and  subsequently  conveyed  the  abutting 
lots,  merely  by  number,  without  a  reservation  of  the  minerals, 
the  latter  will  pass  to  the  grantee  of  the  lots.85 

§  553.  Estoppel  of  grantee  as  against  public. — Where  one 
purchases  lots  according  to  a  recorded  plat,  which  are  partly 
upland  and  partly  tide  land,  with  an  alley  and  other  lots  platted 

33Chicago    v.    Van    Ingen,    152      R.  Co.,  101  Mass.  540,  100  Am.  Dec. 
111.  624,  38  N.  E.  894,  43  Am.  St.      127. 

285.  35Snoddy  v.  Bolen,  122  Mo.  479, 

3*Hennessey  v.  Old  Colony  &  N.      24  S.  W.  142,  25  S.  W.  932,  24  L. 

R.  A.  507. 


§    554  SURVEYING  AND  BOUNDARIES  512 

over  tide  water  in  front  of  them  the  purchaser  is  estopped 
from  claiming  any  rights  beyond  the  platted  boundaries  of  his 
lots,  as  against  the  rights  of  the  public  in  said  alley,  and  of 
those  ,in  possession  of  the  lots  beyond  such  alley.36 

§  554.  Estoppel  of  proprietor  of  plat. — The  plat  of  M's 
addition  to  a  city  recorded  in  1847,  showed  a  street  on  the 
east  side  forty  feet  in  width.  The  plat  of  Cs  addition  to  the 
same  city,  recorded  in  1848,  showed  a  street  on  the  west  side 
forty  feet  in  width,  which,  together  with  the  forty  feet  on  the 
east  side  of  M's  addition,  was  represented  as  constituting  one 
continuous  street  eighty  feet  in  width.  There  was  nothing  on 
the  plat,  nor  any  monument  on  the  land,  to  indicate  that  there 
was  any  space  between  the  two  platted  tracts ;  but  there  was, 
in  fact,  an  intervening  strip  of  twenty-seven  feet  belonging  to 
M.  The  whole  space  of  one  hundred  and  seven  feet  has  been 
used  as  a  public  street  since  platting  the  land,  and  lots  have 
been  sold  on  each  side  with  reference  to  said  plats.  Held 
that  M  and  those  claiming  under  him  are  estopped  from  set- 
ting up  title  beyond  the  actual  center  of  the  street,  as  against 
persons  who  purchased  lots  on  the  opposite  side  of  the  street, 
after  recording  of  said  plats,  without  actual  notice  of  M's  title 
to  said  strip.  If  the  original  boundary  lines  had  appeared  on 
the  plats  it  would  effectually  be  notice  of  M's  rights.37 

§  555.  Words  of  dedication. — The  courts  are  frequently 
called  upon  to  construe  the  wording  of  plats  of  subdivisions 
and  additions  to  cities  and  villages  and  also  the  plats  them- 
selves with  wordings  thereon.  One  of  the  questions  which 
finds  itself  before  the  courts  of  last  resort,  often,  is  that  of 
the  dedication  of  certain  parts  of  platted  grounds  to  the  munici- 
pality, or  more  properly  to  the  public.  If  the  dedication  is  to  the 
public  all  lot  owners  in  the  vicinity  have  an  interest  in  the  dedi- 

86Kenyon  v.  Knipe,  2  Wash.  394,  "Weisbrod  v.  Chicago  &  N.  W. 
27  Pac.  227,  13  L.  R.  A.  142.  Ry.  Co.,  18  Wis.  35,  86  Am.  Dec. 

743- 


513  DEDICATION   AND  ESTOPPEL  §    555 

cated  lands.  It  has  been  held  that,  "land  *  *  *  marked  on  the 
plat  as  'public  ground/  or,  as  'not  to  be  occupied  with  build- 
ings of  any  description/  or,  as  'public  ground — no  buildings/ 
constitutes  a  dedication  of  such  land  in  trust  for  the  public/'38 
It  will  be  seen  that  words  of  dedication  on  the  plat  play  ar 
important  part  in  the  act  of  dedication. 


38Chicago  v.  Ward,  169  111.  392, 
!  N.  E.  927,  61  Am.  St.  185,  38 


48  N. 

R.  A.  849. 


CHAPTER  XXI 


AGREEMENTS  ON  BOUNDARIES  AND  SURVEYORS 


Sec.  Sec. 

556.  Generally.  565. 

557.  Parol  agreement  as  to  bound- 

ary. 566. 

558.  Consent    to    rectify    crooked 

boundary.  567. 

559.  Boundary    line   agreed    upon 

conclusive.  568. 

560.  Trustee  bound  in  private  ca- 

pacity also.  569, 

561.  Ignorant  as  to  line  and  agree-      570. 

ment  between  owners.  571. 

562.  Agreements  on   dividing  line 

not  a  conveyance.  572. 

563.  Party  not  estopped  under  cer- 

tain circumstances. 

564.  Agreement  to  employ  a  sur- 

veyor. 


Acquiescence  —  Mistake — Es- 
toppel. 

Agreements  under  mistake  as 
to  facts. 

Adverse  possession  under 
color  of  title. 

Agreement  on  line  indefinite 
and  uncertain. 

Practical  location  of  line. 

Estoppel  by  acts. 

Agreements,  compromises  ap- 
proved and  encouraged. 

Room  for  controversy  and 
disagreement  over  line  es- 
sential in  most  jurisdic- 
tions. 


§  556.  Generally.— An  important  branch  of  the  subject 
under  consideration  is  that  of  agreements  between  adjacent 
proprietors  of  land  as  to  the  boundary  line  between  them. 
Important  for  the  reason  that  by  so  making  such  an  agree- 
ment, parties,  under  certain  circumstances,  are  precluded  from 
insisting  on  the  correct  line  when  later  ascertained.  It  is  held 
generally  that  where  there  is  an  honest  dispute  between  ad- 
joining owners  as  to  the  location  of  the  true  line  between 
them,  and  they  establish  a  line  and  agree  on  such  line  as  the 
division  line,  and  thereafter  both  parties  occupy  and  claim 
up  to  such  line,  on  their  respective  sides,  for  the  statutory 
period,  they  will  be  precluded  from  claiming  beyond  such  line. 

5H 


515  AGREEMENTS  ON  BOUNDARIES  AND  SURVEYORS        §    558 

In  fact,  it  has  been  held  that  title  can  be  and  frequently  is  ac- 
quired by  adverse  possession  in  that  manner. 

Likewise  parties  sometimes  agree  to  call  in  a  surveyor  and 
have  him  run  the  division  line  between  them.  Whether  or 
not  they  will  be  bound  by  the  line  so  run  will  depend  on  the 
circumstances  in  each  case.  The  courts  have  not  always  been 
in  harmony  as  to  the  binding  effect  of  such  an  agreement  on 
the  line  so  run.  It  is  generally  held  that  the  parties  will  not 
be  bound  where  the  surveyor  has  made  a  mistake  in  running 
the  line,  and  the  parties  were  ignorant  of  such  mistake,  or  did 
not  assent  to  it.  However,  a  careful  examination  of  the  facts 
in  each  case  is  essential  and  then  an  application  of  the  law  as 
found  in  the  adjudicated  cases  to  those  facts.  We  quote  herein 
from  some  of  the  leading  adjudicated  cases  on  the  subjects  of 
this  chapter. 

§  557-  Parol  agreement  as  to  boundary. — Where  monu- 
ments or  boundaries  have  been  obliterated  so  as  to  leave  the 
location  a  matter  of  uncertainty,  a  parol  agreement  as  to  the 
boundary  is  binding.  Of  course,  this  agreement  must  be  en- 
tered into  between  the  owners  of  adjoining  lands  and  must 
have  been  acted  on.1  And  it  is  said :  "A  disputed  question  of 
boundary,  where  the  true  line  is  indefinite,  or  uncertain,  may 
be  determined  by  parol  agreement  between  the  parties"  own- 
ing adjoining  tracts.2 

§  558-  Consent  to  rectify  crooked  boundary. — A  verbal 
consent  to  rectify  a  crooked  boundary,  which  has  been  ac- 
quiesced in  for  twenty-five  years,  is  not  sufficient,  in  itself,  to 
change  the  possession,  and  may  be  revoked  before  the  boun- 
dary is  changed.3 

§  559.  Boundary  line  agreed  upon  conclusive. — A  bound- 
ary line  expressly  agreed  upon  is  conclusive  on  the  parties.4 

1  Clark  v.  Wethey,  19  Wend.  (N.  3Dunham  v.  Stuyvesant,  n  Johns. 

Y.)  320.  (N.  Y.)  569. 

2Vosburgh   v.   Teator,  32   N.   Y.  4McCormich  v.  Barnum,  10  Wend. 

561;  Stout  v.  Woodward,  71  N.  Y.  (N.  Y.)   104. 
590- 


§    559  SURVEYING  AND  BOUNDARIES  516 

§  560.  Trustee  bound  in  private  capacity  also. — A  grantor 
is  bound  in  his  private  capacity  to  a  boundary  settled  by  him 
as  trustee.  He  can  not  acknowledge  a  line  in  one  capacity, 
and  deny  it  in  another.5 

§  561.  Ignorant  as  to  line  and  agreement  between  owners. 
— Owners  of  adjoining  lands  between  whom  there  is  no  dispute 
as  to  the  location  of  the  boundary  line  between  them,  but 
who  are  ignorant  as  to  its  true  location,  and  for  that  reason 
employ  a  surveyor  to  locate  it  for  them,  are  not  bound  by  its 
location,  if  incorrect,  even  though  they  afterwards  acquiesce 
in  it,  believing  it  to  be  correct.6  But  the  owners  of  land  on 
opposite  sides  of  a  line,  having  agreed  upon  a  certain  line,  as 
the  true  line,  between  them,  and  such  line  then  being  in  dis- 
pute, will  be  bound  thereby,  if  occupied  adversely  to  that  line 
the  statutory  period.7 

§  562.    Agreements  on  dividing  line  not  a  conveyance. — An 

agreement  between  adjoining  owners  fixing  a  boundary  line 
between  them  is  not  valid  for  any  other  purpose  than  that  of 
settling  an  uncertainty  in  regard  to  the  common  boundary; 
and  if  they  agreed  to  a  division  line  knowing  it  was  not  the 
true  line,  and  with  the  purpose  of  transferring  from  one  to 
the  other  of  a  body  of  land,  which  they  both  knew  was  not 
according  to  the  truth,  the  agreement  will  not  be  enforced.8 
If  a  transfer  of  land  by  the  above  method  should  be  sanctioned 
by  the  courts,  the  statutes  providing  that  all  conveyances  of 
lands  should  be  in  writing,  would  be  nullified.  Hence,  the 
so-called  "line  agreements"  are  sanctioned  only  where  there 

5Wood  v.  Livingston,  n  Johns.  7Watrous  v.  Morrison,  33  Fla. 
(N.  Y.)  36.  261,  14  So.  805,  39  Am.  St.  139. 

6Pickett  v.  Nelson,  79  Wis.  9,  8Lewis  v.  Ogram,  149  Cal.  505, 
47  N.  W.  936.  87  Pac.  60,  10  L.  R.  A.  (N.  S.) 

610,  117  Am.  St.  151. 


517  AGREEMENTS  ON  BOUNDARIES  AND  SURVEYORS       §    563 

is  an  honest  dispute  between  the  parties  as  to  the  line  and 
where  such  line  is  not  known. 

Persons  owning  adjoining  lands  may,  by  agreement,  es- 
tablish the  boundary  between  their  lands,  regardless  of  the 
lines  of  the  government  survey  and  when  said  agreement  is 
clearly  proved  and  the  parties  have  occupied  on  each  side  of 
said  line  for  the  statutory  period,  claiming  to  own  to  that 
line  and  holding  adversely  it  will  be  regarded  as  the  true  line.9 

§  563.  Party  not  estopped  under  certain  circumstances. — 
Where  adjoining  owners  hire  a  surveyor  to  run  the  line  be- 
tween their  lands  and  he  does  attempt  to  run  such  line,  the  line 
so  run  will  not  bind  the  parties  unless  correctly  run.  And 
it  has  been  held  that,  "If  lines  have  been  run  by  a  surveyor 
at  the  common  expense  of  owners  of  adjoining  lands,  and 
boundary  marks  set  up,  and  one  party  adopts  a  line  thus  run, 
and  builds  in  conformity  with  it,  the  other  party  is  not  thereby 
estopped  from  claiming  that  it  is  not  the  true  line,  if  it  does 
not  appear  that  he  knew  that  the  other  was  incurring  expense 
upon  the  faith  of  a  supposed  agreement  to  treat  the  line  thus 
run  as  the  true  line.10 

But  where  there  is  a  dispute  between  adjoining  proprietors 
as  to  the  true  line  between  them,  and  they  are  ignorant  of  the 
true  line;  and  they  fix  and  agree  upon  a  permanent  boundary 
line  and  take  possession  accordingly,  the  agreement  is  binding 
on  them  and  those  claiming  under  them.11  In  case  of  Kitchen 
v.  Chantland,  the  defendant  had  consented  to  a  survey  to  es- 
tablish the  division  line  between  his  land  and  the  plaintiffs 
and  after  it  was  made,  recognized  the  line  as  fixed  by  the  sur- 
veyor as  the  true  one,  and  not  only  constructed  improvements 
with  reference  thereto,  but  saw  plaintiff  making  improve- 
ments and  incurring  expenses,  relying  on  such  survey,  without 

9Cox  v.  Daugherty,  75  Ark.  395,  "Krider  v.  Milner,  99  Mo.  145, 

36  S.  W.  184,  112  Am.  St.  75-  12  S.  W.  461,  17  Am.  St.  549; 

10Thayer  v.  Bacon,  3  Allen  Kitchen  v.  Chantland,  130  Iowa  618, 

(Mass.)  163,  80  Am.  Dec.  59-  IO5  N.  W.  367,  8  Ann.  Cas.  81. 


§    564  SURVEYING   AND   BOUNDARIES  518 

objecting  thereto.  The  court  says :  "Contrary  to  defendant's 
contention,  the  rule  of  law  is  well  settled,  that  if  there  be  doubt 
or  uncertainty,  or  a  dispute  as  to  the  true  location  of  a  bound- 
ary line,  the  parties  may  by  parol  fix  a  line  which  will,  at 
least,  when  followed  by  possession  with  reference  to  the  bound- 
ary so  fixed,  be  conclusive  upon  them,  although  the  possession 
may  not  have  been  for  the  full  statutory  period."12  On  the 
other  hand  it  is  said,  "Parties  are  not  bound  by  an  erroneous 
agreement  entered  into  relative  to  a  boundary  line/'13 

Not  essential  to  adverse  holding  that  the  land  be  inclosed. 
This  principle  has  been  frequently  set  forth.  We  find :  "Not 
essential  to  adverse  holding  that  the  land  so  held  be  inclosed. 
How  boundary  is  marked  not  so  important  if  it  is  well  defined. 
If  land  be  cultivated  under  claim  or  right  for  statutory  period 
the  adverse  holding  will  extend  to  the  limits  cultivated."14 

§  564.  Agreement  to  employ  a  surveyor. — An  agreement 
between  adjoining  owners  to  employ  a  surveyor  to  establish 
a  boundary  line  does  estop  either  from  showing  a  mistake  in 
the  line  as  run.15  When  adjoining  land  owners  cause  their 
land  to  be  surveyed,  and  the  division  line  to  be  established  be- 
tween them,  such  survey  conclusively  establishes  the  line,  and 
is  binding  both  on  them  and  all  who  claim  under  them.16  On 
the  issue  of  location  of  a  boundary  line  a  surveyor's  determina- 
tion thereof  is  not  final.17  When  adjoining  owners  employ  a 
surveyor  to  run  the  boundary  between  them  not  because  they 
have  had  a  dispute  about  it,  but  merely  because  they  are  igno- 
rant of  its  exact  location,  such  survey  is  not  conclusive  on  the 

"Clayton  v.  Feig,  179  HI.  534,  54  495,  139  S.  W.  745,  Ann.  Cas.  1913 

N.  E.  149;  Vosburgh  v.  Teator,  32  A,  747. 

N.  Y.  561;   Pittsburgh  &  L.  A.  I.  15Watrous   v.   Morrison,  33   Fla. 

Co.  v.  Lake  Superior  Iron  Co.,  118  261,  14  So.  805,  39  Am.  St.  139. 

Mich.  109,  76  N.  W.  395 ;  Glover  v.  16Main  v.  Killinger,  90  Ind.  165  ; 

Wright,  82  Ga.  114,  8  S.  E.  452.  Hobbs  v.  Cram,  22  N.  H.  (2  Fort.) 

18Randleman  v.  Taylor,  94  Ark.  130. 

511,  127  S.  W.  723,  140  Am.  St.  141-  "Cronin  v.  Gore,  38  Mich.  381. 

"Abbott   v.   Perkinson,    144   Ky. 


519  AGREEMENTS  ON  BOUNDARIES  AND  SURVEYORS       §    565 

parties,  even  though  they  acquiesce  in  it  believing  it  to  be  cor- 
rect.18 Where  the  owners  of  adjoining  lands  employ  a  sur- 
veyor who  runs  out  the  line  and  marks  it  on  the  plat  in  their 
presence,  as  a  boundary,  after  twenty  years'  corresponding 
possession,  they  are  concluded.19  The  owners  of  adjoining 
lands  are  not  bound  by  an  erroneous  survey  made  at  their  re- 
quest, without  knowledge  of  the  error.20  Acquiescence  in  an 
erroneous  survey  of  lands  for  twelve  years  is  conclusive  upon 
a  party  who  aided  in  the  survey  conformable  to  which  the 
location  was  made;  and  to  bind  him  one  need  not  show  that, 
with  full  knowledge  of  the  mistake,  he  expressly  agreed  to 
abide  by  the  location.21  Where  adjoining  owners,  whose  di- 
vision line  is  susceptible  of  exact  location,  have  a  survey  made, 
which  is  afterwards  discovered  to  be  erroneous,  the  fact  that 
both  parties,  having  no  previous  opinion  as  to  the  location  of 
the  line,  express  themselves  as  satisfied  with  the  survey,  and 
acquiesce  therein  for  five  years,  does  not  estop  either  of  them 
from  insisting  on  the  true  boundary.22 

§  565.  Acquiescence — Mistake — Estoppel. — Under  certain 
circumstances  the  acquiescence  in  a  certain  line  for  a  long 
period  of  years  will  estop  such  party  from  claiming  the  true  line 
as  the  boundary,  but  it  is  said,  "Where  there  is  an  acquiescence 
in  a  wrong  boundary  when  the  true  boundary  may  be  ascer- 
tained by  deed,  it  is  treated,  both  in  law  and  equity,  as  a  mis- 
take, and  neither  party  is  estopped  from  claiming  to  the  true 
line.  The  definite  boundary  fixed  in  the  grant  must  govern 
in  all  cases,  and  all  parol  evidence  of  an  estoppel  is  incom- 
petent to  vary  it.  The  boundary  is  considered  definite  and 
certain  when  by  survey  it  can  be  made  certain  from  the  deed."23 

18Pickett  v.  Nelson,  79  Wis.  9,  47  21  Jackson  v.  M'Connell,  12  Wend. 

N.  W.  936.  (N.  Y.)  421. 

19Boyd   v.   Graves,   17  U.   S.    (4  22Sanford  v.  McDonald,  53  Hun. 

Wheat.)   513,  4  L.  ed.  628.  263,  6  N.  Y.  S.  613,  25  N.  Y.  St. 

20Wesley   v.    Sargent,   38    Maine  721. 

315.  23Hartung  v.  Witte,  59  Wis.  285, 

18  N.  W.   175. 


§    566  SURVEYING  AND  BOUNDARIES  52O 

This  must  be  considered  to  be  a  mistake  of  fact,  that  is,  a  mis- 
take as  to  where  the  true  line  was,  for  it  is  said,  "Mere  mis- 
take of  law  as  to  the  effect  of  a  given  state  of  facts  is  not,  as 
a  general  rule,  sufficient  basis  for  relief  either  in  law  or  in 
equity."2* 

And  it  is  said  that,  "While  it  may  be  regarded  as  well  set- 
tled that  the  title  to  real  estate  can  not  be  transferred  by  parol, 
yet  it  is  a  principle  well  established  that  the  owners  of  adjoin- 
ing tracts  of  land  may,  by  parol  agreement,  settle  and  establish 
permanently  a  boundary  line  between  their  lands,  which,  when 
followed  by  possession  according  to  the  line  so  agreed  upon,  is 
binding  and  conclusive,  not  only  upon  them,  but  their  gran- 
tees."25 

The  California  court,26  lays  down  the  rule,  "Agreements  of 
this  character  are  not  subject  to  the  objection  that  they  are 
within  the  statute  of  frauds,  because  they  are  not  considered 
as  extending  to  the  title.  They  do  not  operate  as  a  convey- 
ance so  as  to  pass  the  title  from  one  to  the  other,  but  proceed 
upon  the  theory  that  the  true  line  of  separation  is  in  dispute, 
and  to  some  extent  unknown,  and  in  such  cases  the  agreement 
serves  to  fix  the  line  to  which  the  title  of  each  extends." 

§  566.  Agreements  under  mistake  as  to  facts. — Where  ad- 
jacent owners  of  land  agree  upon  a  boundary  line  under  a 
mistaken  knowledge  of  the  facts,  the  agreement  is  not  bind- 
ing, but  may  be  set  aside  by  either  party,  when  the  mistake 
is  discovered,  unless  there  is  some  element  of  estoppel  which 
prevents  it.  It  is  only  when  the  true  line  is  unknown,  or  is 
difficult  of  ascertainment,  and  the  parties  establish  the  line  to 
settle  a  disputed  question,  as  to  the  boundary,  that  the  agree- 
ment is  binding.  In  this  case,  held  neither  party  is  estopped 

24Kitchen  v.  Chantland,  130  Iowa          26Dierssen    v.    Nelson,    138    Cal. 
618,  105  N.  W.  367,  8  Ann.  Cas.  81.      394,  7i  Pac.  456. 
25Cutler  v.  Callison,  72  111.  113. 


521  AGREEMENTS  ON  BOUNDARIES  AND  SURVEYORS       §    567 

from  disclaiming  the  line  as  agreed  upon.27  But  it  has  been 
held  that  even  though  the  parties  are  mistaken  as  to  the  true 
line  and  intended  the  agreed  line  to  be  the  true  line  yet,  having 
made  the  agreement  and  taken  possession  up  to  such  agreed 
line,  they  will  be  estopped  from  disclaiming  it.28  Long  ac- 
quiescence in  the  location  of  a  boundary  line,  however, 
together  with  the  acts  and  declarations  of  the  parties  treating 
the  same  as  the  true  line  will  authorize  the  jury  to  infer  an 
agreement,  between  the  parties,  establishing  such  boundary.29 

§.  567.  Adverse  possession  under  color  of  title. — One  who 
enters  upon  a  tract  of  land  when  there  is  no  adverse  possession, 
a  portion  of  which  is  uninclosed,  claiming  the  whole  under  a 
deed  describing  the  entire  tract,  will  prevail  in  an  action  to 
recover  the  land  as  against  one  who  enters  subsequently  upon 
the  uninclosed  part  showing  color  of  title  merely.30 

It  was  held  in  an  Alabama  case  that :  "When,  after  a  divid- 
ing line  between  two  adjacent  tracts  of  land  has  been  surveyed, 
each  tract  is  sold  to  different  parties,  and  each  purchaser  goes 
into  possession  believing  the  line  so  surveyed  to  be  the  true 
boundary  line  between  the  respective  tracts,  and  he  claims 
ownership  to  such  line,  such  possession  of  each  tract  will  be 
adverse  and  hostile  up  to  such  line,  even  though  the  division 
as  established  by  the  survey  is  erroneous.31 

T  and  H,  the  owners  of  a  fractional  half  section  of  land,  in 
1864,  agreed  upon  an  equal  division  of  the  tract  and  estab- 

27Randleman  v.  Taylor,  94  Ark.  29Turner  v.  Baker,  64  Mo.  218; 

511,   127   S.  W.  723,   140  Am.   St.  Cavanaugh  v.  Jackson,  91  Cal.  580, 

141;  Watrous  v.  Morrison,  33  Fla.  27  Pac.  931. 

261,  14  So.  805,  39  Am.   St.   139;  30Hicks  v.  Coleman,  25  Cal.  122, 

Turner  v.   Baker,  64  Mo.   218,  27  85    Am.    Dec.    103,    22    Am.    St 

Am.  Rep.  226;  Osteen  v.  Wynn,  131  35,  note. 

Ga.  209,  62  S.  E.  37,  127  Am.  St.  31Hess  v.  Rudder,  117  Ala.  525, 

212;  Trussel  v.  Lewis,  13  Nebr.  415,  23  So.  136,  67  Am.  St.  182;  Krause 

14  N.  W.  155,  42  Am.  Rep.  767.  v.  Nolte,  217  111.  298,  75  N.  E.  362, 

28Purtle  v.  Bell,  225  111.  523,  80  3  Ann.  Cas.  1061,  note. 
N.  E.  350. 


§    5^8  SURVEYING  AND  BOUNDARIES  522 

lished  a  line  upon  which  a  hedge  was  set  out,  and  fences  erected 
and  both  parties  cultivated  up  to  and  made  improvements  upon 
their  respective  tracts  with  reference  to  this  line.  Both  parties 
sold  and  conveyed  their  respective  interests  in  the  land,  the 
grantees  having  knowledge  of  the  agreement.  Held  that  the 
line  thus  established  would  be  sustained,  particularly  in  view 
of  the  fact  that  there  was  testimony  tending  to  show  that  the 
action  was  barred.32 

§  568.  Agreement  on  line  indefinite  and  uncertain. — 
Where  the  line  between  two  parties  is  indefinite  and  uncer- 
tain and  they  are  both  ignorant  of  the  true  line  and  it  can  not 
be  found  without  considerable  trouble,  and  they  agree  to  a 
division  line  between  them  and  fence  and  occupy  their  re- 
spective tracts  up  to  that  line,  they  will  be  estopped  from  dis- 
claiming such  line.33  And  it  has  been  held  that :  "It  is  the 
policy  of  the  law  to  give  stability  to  such  an  agreement,  as 
being  the  most  satisfactory  way  of  determining  the  true  bound- 
ary, and  tending  to  prevent  litigation."34 

§  569.  Practical  location  of  line. — Parties  who,  by  their 
acts,  show  that  they  have  recognized  a  certain  fence  as  the  true 
line  between  their  respective  tracts  and  held  to  that  fence 
claiming  to  own  the  land  to  the  fence  during  a  long  period  of 
time  will  be  held  to  have  established  the  line  by  a  practical  loca- 
tion thereof,  and  it  has  been  said35  that,  "A  practical  location 
of  a  boundary  between  adjoining  lots  of  land  may  be  estab- 
lished by  evidence,  which  shows  an  original  consent,  with  acts 
and  conduct  based  thereon,  implying  an  acquiescence  and  ap- 

82Trussel  v.  Lewis,  13  Nebr.  415,  Purtle  v.  Bell,  225  111.  523,  80  N.  E. 

14  N.  W.  155,  42  Am.  Rep.   767;  35O. 

French  v.  Pearce,  8  Conn.  439,  21  34Cavanaugh  v.  Jackson,  91   Cal. 

Am.  Dec.  680.  580,  27  Pac.  931 ;  Galbraith  v.  Luns- 

83Sherman  v.  King,  71  Ark.  248,  ford,  87  Tenn.  89,  9  S.  W.  365,  i 

72  S.  W.  571;  Tate  v.  Foshee,  117  L.  R.  A.  522;  Lindley  v.  Johnson, 

Ind.  322,  20  N.  E.  241 ;  Cavanaugh  42  Wash.  257,  84  Pac.  822. 

v.  Jackson,  91  Cal.  580,  27  Pac.  931 ;  35Vauth  v.  Landis,  44  Hun.  626, 

7  N.  Y.  St.  683. 


523  AGREEMENTS  ON  BOUNDARIES  AND  SURVEYORS       §    5/0 

probation,  by  the  owners  of  such  practical  location."  While 
it  is  generally  held  that  an  agreement  between  two  adjoining 
owners  establishing  the  boundary  line  between  them  made 
under  a  mistake  as  to  the  facts  in  connection  with  such  line, 
will  not  be  binding  on  the  parties,  yet,  if  such  owners  estab- 
lish such  line  and  occupy  adversely  up  to  such  line  for  the 
statutory  period,  they  will  be  bound  thereby,  and  it  is  said: 
"Location  of  incorrect  boundary  line  under  mistake  by  one 
proprietor  and  acquiescence  therein  for  the  period  required  to 
give  title,  will  estop  him  from  denying  its  incorrectness,  in 
the  absence  of  an  express  agreement  between  the  adjacent 
proprietors  concerning  the  line,  and  although  the  proprietor 
claiming  the  benefit  of  the  estoppel  never  inclosed  his  lands; 
especially  when  great  injustice  would  be  done  the  latter  by  its 
correction/'36  The  principle  of  equitable  estoppel  is  frequently 
asserted  in  boundary  cases  and  is  invoked  against  the  party 
whose  acts  have  led  the  other  party  to  act  to  his  injury.  The 
rule  is  sometimes  stated  as  follows :  "When  one  of  two  inno- 
cent persons,  that  is,  persons  each  guiltless  of  an  intentional 
moral  wrong — must  suffer  a  loss,  it  must  be  borne  by  that  one 
of  them,  who,  by  his  conduct,  acts,  or  omissions  has  rendered 
the  injury  possible."37 

§  570.  Estoppel  by  acts. — Where  the  grantor  of  certain 
real  estate  showed  the  purchaser  the  wrong  line,  and  was 
cognizant  of  his  acting  on  that  information,  and  stood  silent 
while  a  house  was  being  erected  and  money  expended,  he 
thereby  directly  led  the  purchaser  into  a  line  of  conduct  preju- 
dicial to  his  interest  and  should  not  afterwards  be  heard  al- 
leging anything  to  the  contrary.  Such  acts  would  constitute 
an  "estoppel  in  pais"ss  Lines  are  frequently  established  be- 

36Lindell  v.  McLaughlin,  30  Mo.  37North  River  Bank  v.  Aymar,  3 
28,  77  Am.  Dec.  5931  Jackson  v.  Hill  (N.  Y.)  262,  i  L.  R.  A.  522, 
McConnell,  19  Wend.  (N.  Y.)  175,  note. 

32   Am.   Dec.   439-  38Rutherford   v.    Tracy,   48    Mo. 

325,  8  Am.  Rep.  104. 


§    57°  SURVEYING  AND  BOUNDARIES  524 

yond  change  because  of  the  fact  that  one  party  or  the  other 
has,  by  his  acts,  placed  himself  beyond  the  power  of  himself 
or  a  court  to  change.  This  principle  is  called  "Equitable 
estoppel."  A  slight  variation  in  the  facts  will,  however,  change 
the  view  of  the  court  to  a  contrary  decision,  as  will  be  seen  by 
the  following:  "Where  two  adjoining  lots  are  sold  A  and 
B  and  the  supposed  boundary  pointed  out  to  which  no  objec- 
tion is  made  by  the  purchasers,  one  of  them  is  not  estopped 
thereby  from  claiming  to  the  true  line  of  his  lot,  beyond  the 
one  thus  pointed  out  unless  at  the  time  of  the  sale  he  knew 
where  the  true  line  was,  and  the  other  purchaser  was  induced 
to  and  did  purchase  in  consequence  of  his  silence  or  some  acts 
by  him  done/'39 

Different  courts  have  taken  different  views  as  to  this  matter 
of  estoppel.  In  a  Massachusetts  case,40  the  court  lays  down 
the  rule  that:  "A  and  B,  owners  of  adjoining  land,  in- 
tending to  establish  the  divisional  line  according  to  the  true 
boundary,  agreed  by  parol,  on  a  line  that  did  not  conform  to 
such  boundary,  and  afterwards  held  possession  according  to 
such  conventional  line.  B  sold  his  land  to  C.  Before  the  sale, 
A  stated  to  C  that  the  land  which  he,  A,  claimed  was  bounded 
by  said  conventional  line  between  him  and  B  and  that  he  did 
not  claim  beyond  that  line.  After  the  sale  to  C,  he  made  im- 
provements on  the  land  next  to  such  line  with  the  knowledge 
of  A,  who  was  often  present  and  pointed  out  said  line,  without 
expressing  any  dissent  to  Cs  proceedings  or  giving  notice  that 
he  had  any  claim  to  said  land;  A  afterwards  disclaimed  that 
said  line  was  the  true  dividing  line,  and  that  C  was  in  posses- 
sion, as  B  had  been,  of  a  piece  of  land  belonging  to  A.  Held 
A  was  not  estopped  from  claiming  from  C  the  strip  of  land." 
See  other  cases.41 

39Titus  v.  Morse,  40  Maine  348,      Corp.,  5  Mete.  (Mass.)  478,  39  Am. 
63  Am.  Dec.  665.  Dec.  694. 

40Brewer    v.    Boston    &    W.    R.          41  Evans  v.  Miller  58  Miss.   120, 

38  Am.  Rep.  313. 


525  AGREEMENTS  ON  BOUNDARIES  AND  SURVEYORS       §    57! 

The  rule  seems  to  be  pretty  well  established,  however,  in 
most  of  the  states  that  where  the  owner  of  land  points  out  the 
lines  and  corners,  at  the  time  of  a  sale  of  the  land,  he  is  estop- 
ped from  thereafter  denying  such  locations,  and  we  find,  the 
Iowa  court  saying :  "When  the  owner  points  out  the  lines  and 
corners  to  one  who  purchases,  relying  on  the  boundaries  so 
designated,  the  vendor  is  estopped  from  denying  such  location 
of  the  lines.42 

§  571.  Agreements,  compromises  approved  and  encour- 
aged.— Where  interested  parties  have,  fairly  and  knowingly, 
without  fraud  or  mistake,  entered  into  an  agreement  whereby 
a  certain  line  between  them  has  been  adopted  and  taken  to  be 
the  true  line  and  have  occupied  their  respective  lands  to  that 
line,  they  will  be  held  to  such  agreement  and  the  courts  will 
approve  the  same.  Some  of  the  courts  have  used  strong 
language  relative  to  the  approval  of  such  agreements.43  That 
court  said :  "This  court  has  frequently  passed  on  questions  of 
boundary,  and,  as  has  been  frequently  cited,  'these  settlements 
of  boundary  are  common,  beneficial,  approved,  and  encour- 
aged by  the  courts,  and  ought  not  to  be  disturbed,  though  it 
was  afterwards  shown  that  they  had  been  erroneously  settled. 
Convenience,  policy,  necessity,  justice,  all  unite  in  favor  of 
such  a  settlement.'  While  the  large  majority  of  cases  passed 
upon  in  this  state  present  questions  of  acquiescence,  partition, 
compromise,  and  arbitration,  still  agreements  of  a  recent  date, 
where  there  was  doubt,  and  whether  the  parties  were  right  or 
wrong  in  their  belief  that  the  line  they  established  and  agreed 
upon  as  the  boundary  of  their  land  was  precisely  where  it  ought 
to  be,  have  been  encouraged,  favored,  and  upheld  in  a  number 
of  cases." 

42Rowell     v.     Weinemann,      119          43Levy  v.  Maddox,  81  Tex.  210, 
Iowa  256,  93   N.  W.  279,  97  Am.       16  S.  W.  877. 
St.  310. 


§    572  SURVEYING  AND  BOUNDARIES  526 

§  572.  Room  for  controversy  and  disagreement  over  line 
essential  in  most  jurisdictions. — Most  jurisdictions  hold  that 
in  order  for  the  adjacent  owners  to  make  a  binding  oral  agree- 
ment as  to  the  boundary  line  between  them  there  must  be  room 
for  an  honest  disagreement  between  them  as  to  the  true  loca- 
tion of  the  line.44  That  court  held  that:  "Where  there  is 
room  for  controversy  as  to  the  location  of  a  dividing  line, 
the  conterminous  proprietors  *  *  may  orally  agree  upon  the 
line;  and  if  the  agreement  is  accompanied  by  possession  to  the 
agreed  line,  or  is  otherwise  duly  executed,  such  agreement  will 
be  valid  and  binding,  and  the  line  thus  defined  will  thereafter 
control  their  deeds.  However,  it  is  not  necessary  that  posses- 
sion under  the  agreed  line  should  be  had  for  twenty  years,  to 
give  validity  to  the  agreement,  though  the  agreement  derives 
additional  weight  from  long  acquiescence.  A  parol  agree- 
ment between  the  adjoining  land  owners  to  fix  a  boundary  line 
between  their  respective  tracts,  theretofore  unascertained,  un- 
certain or  disputed,  is  not  within  the  operation  of  the  statute 
of  frauds,  for  the  reason  that  no  estate  is  created.  When  a 
boundary  line  is  established  by  consent  the  conterminous  pro- 
prietors hold  up  to  it  by  virtue  of  their  title  deeds,  and  not  by 
virtue  of  a  parol  transfer  of  title." 

The  principle  is  well  settled  in  Missouri  and  that  court  has 
said :  "It  is  *  *  *  well  settled  in  this  state  that  where  there 
is  a  dispute  as  to  the  location  of  the  true  boundary  line  be- 
tween two  adjoining  proprietors,  or  where  the  line  is  uncer- 
tain and  they  are  ignorant  of  its  true  location,  and,  by  agree- 
ment, they  fix  upon  a  permanent  boundary  line  and  take  pos- 
session in  pursuance  thereof,  then  the  agreement  is  valid  and 
binding  on  the  parties  thereto  and  those  claiming  under 
them."45 

And  the  Michigan  court  says :    "Where  disputed  boundary 

4*Osteen  v.  Wynn,  131  Ga.  209,  62  45Reynolds  v.  Hood,  209  Mo.  611, 
S.  E.  37,  127  Am.  St.  212.  108  S.  W.  86. 


527          ,  AGREEMENTS  ON  BOUNDARIES  AND  SURVEYORS       §    572 

lines  have  been  established  by  express  agreement,  and  the 
parties  have  recognized  them  and  expended  large  sums  under 
the  agreement,  they  will  be  upheld,  although  title  by  adverse 
possession  has  not  been  acquired.  The  application  of  the  doc- 
trine of  estoppel  as  to  voluntary  adjustment  of  boundaries  be- 
tween contiguous  lands  is  not  within  the  statute  of  frauds."48 
In  this  case,  the  party  in  whose  favor  the  doctrine  of  estoppel 
was  invoked  had  expended  over  one  hundred  thousand  dollars 
on  the  strength  of  an  agreement  made  with  adjacent  owners 
dividing  their  rights,  as  riparian  owners,  in  the  bed  of  a  non- 
navigable  lake  and  fixing  the  boundaries  between  their  lands. 
See  other  cases.47 

"Pittsburgh   &   L.    A.   I.   Co.   v.          47Jones  v.  Pashby,  67  Mich.  459, 
Lake  Superior  Iron  Co.,  118  Mich.      35  N.  W.  152,  n  Am.  St.  589. 
109,  76  N.  W.  395- 


CHAPTER  XXII 

SURVEYORS LIABILITIES EXPERTS RIGHTS 

Sec.  Sec. 

573-    Generally.  577.     Not  liable  for  excess  of  land 

574.  Liability  of  surveyors — Error  parted       off — Liable       for 

in   fixing  boundary.  fees  paid  him. 

575.  Degree   of   care   required    of      578.    Surveyors  as  experts. 

surveyor.  579.    Libel  or  slander  of  surveyor. 

576.  Private  and  county  surveyor 

alike  liable  for  negligence. 

§  573»  Generally. — In  his  employment  by  private  parties, 
the  surveyor  occupies  the  position  of  a  professional  man  and 
he  must  exercise  that  degree  of  care  which  a  skilled  surveyor 
of  ordinary  prudence  would  exercise  under  similar  circum- 
stances and  for  a  failure  to  so  exercise  that  degree  of  care  he 
will  be  liable  in  damages,  to  the  extent  of  the  injury,  to  those 
who  employed  him.  This  is  so  whether  he  be  acting  as  a  pub- 
lic official  or  in  his  private  capacity. 

The  surveyor  is  frequently  called  upon  as  a  witness  in  the 
trial  of  causes  in  court.  The  question  naturally  arises  can  he 
testify  as  an  expert?  The  courts  have  passed  upon  this  ques- 
tion under  various  circumstances,  and  it  has  been  held  by  the 
courts  generally  that  the  surveyor  may,  under  certain  circum- 
stances, testify  as  an  expert  witness.  We  quote  herein  from 
some  of  the  more  important  cases  on  liabilities  of  a  surveyor 
and  his  position  as  an  expert. 

§  574.  Liability  of  surveyors — Error  in  fixing  boundary. — 
Where  the  owner  of  the  land,  at  the  time  of  having  it  surveyed, 
notified  the  surveyor  of  the  kind  of  building  he  was  going  to 
place  on  the  lot,  the  surveyor  was  held  liable  for  all  damages 

528 


529  SURVEYORS — LIABILITIES EXPERTS — RIGHTS        §    5/6 

arising  from  a  mistaken  location  of  the  building,  caused  by  an 
erroneous  survey.1  In  this  case,  the  court  also  holds  that  where 
the  surveyor  was  notified  of  the  kind  of  building  to  be  built 
on  the  lot,  he  cannot,  as  a  defense,  plead  that  the  survey  was 
not  guaranteed,  and  that  for  a  higher  price  it  was  the  custom 
of  surveyors  to  guarantee  their  work.  This  subject  has  been 
considered  in  several  carefully  adjudicated  cases.  From  an 
examination  of  the  adjudicated  cases,  it  would  appear  that  a 
surveyor  or  engineer  is  liable  for  negligently  fixing  the  boun- 
dary line  of  one  employing  him,  and  is  liable  for  the  damages 
naturally  following  the  work  consistent  with  the  knowledge 
given  to  him  of  the  use  to  which  the  lot  was  to  be  put.2 

§  575.  Degree  of  care  required  of  surveyor. — In  a  Connec- 
ticut case,3  the  court  says,  in  part :  "The  gist  of  the  plaintiffs 
cause  of  action,"  against  a  civil  engineer  for  damages  for 
negligence  in  locating  one  of  the  boundary  lines  of  the  plain- 
tiff's land,  "was  the  negligence  of  the  defendant  in  his  em- 
ployment as  civil  engineer.  Having  accepted  that  service  from 
the  plaintiff,  the  defendant,  as  the  jury  were  properly  in- 
structed, was  bound  to  exercise  that  degree  of  care  which  a 
skilled  civil  engineer  of  ordinary  prudence  would  have  exer- 
cised under  similar  circumstances." 

§  576.  Private  and  county  surveyor  alike  liable  for  negli- 
gence.— In  a  Michigan  case,4  the  action  was  by  the  commis- 
sioner of  highways  against  the  defendant,  who  was  county 
surveyor.  The  latter  was  employed  by  such  official  to  locate 
and  mark  the  east  quarter  line  of  a  designated  section  upon 
which  a  highway  was  about  to  be  laid  out.  The  defendant  en- 
tered upon  the  survey,  but  so  negligently  did  he  perform  the 

iTaft   v.    Rutherford,   66   Wash.      Beebe,  55  Mich.  137,  20  N.  W.  826; 
256,  119  Pac.  740,  38  L.  R.  A.  (N.      McCarty  v.  Bauer,  3  Kans.  237. 
S.)    1043,  Ann.  Cas.  1913  C,  522.  3Ferrie  v.   Sperry,  85  Conn.  337, 

2Ferrie  v.  Sperry,  85  Conn.  337,      82  Atl.  577- 

82   Atl.   577J    Highway   Comrs.   v.          4Highway    Corns,    v.    Beebe,    55 

Mich.  137,  20  N.  W.  826. 


§    5?6  SURVEYING  AND  BOUNDARIES  530 

services  that  it  was  necessary  to  have  the  line  resurveyed. 
Before  such  resurvey  was  made,  the  public  authorities  had  con- 
structed considerable  new  road  on  the  line  so  located.  This 
new  road  was  not  on  the  correct  line  and  a  large  amount  of 
work  had  to  be  abandoned.  As  a  result,  the  town  suffered 
large  damages.  The  action  was  brought  to  recover  such 
damages  of  the  surveyor.  The  defendant  demurred  to  the 
complaint.  The  court,  in  overruling  the  demurrer  says :  "We 
do  not  think  the  demurrer  is  well  taken.  There  is  no  question 
made  that  the  plaintiff  has  the  right  to  maintain  the  suit. 
The  declaration  avers  the  laying  out  and  establishing  the  high- 
way" *  *  *,  the  employment  of  defendant  to  survey 
and  mark  the  line;  that  the  defendant  was  in  duty  bound  to 
perform  the  work  properly  and  skillfully;  that  the  defendant 
failed  to  so  perform  such  work,  etc. ;  that  as  a  result  damages 
accrued  to  the  plaintiff.  The  mention  of  the  defendant  as  the 
county  surveyor  did  not  affect  the  situation.  "The  duty 
averred  was  that  arising  from  the  employment  of  the  defend- 
ant, and  not  from  the  office  he  held ;  but  under  either  he  would 
be  required  to  do  the  work  undertaken  properly  and  correctly." 
*  *  *  "Whether  he  was  a  professional  or  official  surveyor, 
or  represented  himself  as  such,  his  undertaking  was  that  he 
should  bring  to  the  work  the  necessary  knowledge  and  skill  to 
perform  the  same  properly  and  correctly;  and  if  he  failed  so 
to  do,  and  the  employer  sustained  damages  in  consequence  of 
such  failure,  the  plaintiff  will  be  entitled  to  recover/'5 

The  general  rule  is  that  a  professional  man  must  exercise 
that  degree  of  care  which  a  skilled  man  of  his  profession,  us- 
ing ordinary  prudence,  would  exercise,  under  like  circum- 
stances. In  a  Kansas  case  the  court  says:  "Reasonable  care 
and  skill  is  the  measure  of  obligation  created  by  the  implied 
contract  of  a  surgeon,  lawyer  or  any  other  professional  prac- 
titioner."6 But  Ruling  Case  Law  says :  "Yet  a  person  under- 

5Highway    Corns,    v.    Beebe,    55          6Branner   v.    Stormont,   9    Kans. 
Mich.  137,  20  N.  W.  826.  51. 


531  S.URVEYORS LIABILITIES EXPERTS RIGHTS        §    578 

taking  to  make  a  survey  does  not  insure  the  correctness  of  his 
work,  nor  is  absolute  correctness  the  test  of  the  amount  of 
skill  the  law  requires.  Reasonable  care,  honesty  and  a  reason- 
able amount  of  skill  are  all  he  is  bound  to  bring  to  the  dis- 
charge of  his  duties."7 

§  577.  Not  liable  for  excess  of  land  parted  off — Liable  for 
fees  paid  him. — A  county  surveyor,  making  a  survey,  under  an 
order  of  the  court,  made  a  mistake  in  surveying  the  land,  so 
that  thirty  acres  more  than  the  one  hundred  and  twenty-five 
acres  demanded  was  set  off  to  A  from  B's  land.  Held,  in  a 
suit  brought  by  B  against  the  surveyor  and  the  sureties  on  his 
official  bond,  that  B  could  recover  back  the  fees  paid  by  him 
for  the  survey,  but  not  the  value  of  the  thirty  acres  as  that 
might  be  recovered  from  A.8  These  few  citations  will  be  ample 
to  aid  the  professions  in  deciding  as  to  the  liabilities  of  the 
surveyor  in  a  given  case. 

§  578.  Surveyors  as  experts. — A  surveyor  may  testify  as 
an  expert  and  give  his  opinion  whether  piles  of  stones  and 
marks  on  trees  were  monuments  of  boundaries.9  A  surveyor 
may  testify  he  found  the  corners  in  dispute  to  be  according  to 
the  original  government  survey.10  Surveyor  may  not  testify 
that  in  his  opinion  a  corner  had  been  located  by  a  survey  made 
forty-three  years  before  he  surveyed  the  land.11  Parol  evi- 
dence of  a  surveyor  admissible  to  show  the  meaning  of  certain 
cross  lines  on  a  map.12  The  opinion  given  by  a  surveyor 
formed  on  an  inspection  of  marks  on  trees,  as  to  the  bounda- 
ries of  lots,  is  inadmissible,  though  he  has  since  died.13  It  may 

74  Ruling  Case  Law  77;  Taft  v.  10Hockmoth    v.    Des    Grand 

Rutherford,  66  Wash.  256,  119  Pac.  Champs,   71   Mich.  520,  39  N.  W, 

740,  38  L.  R.  A.  (N.  S.)  1043,  Ann.  737- 

Cas.  1913  C,  522.  "Burt  v.  Busch,  82  Mich.  506,  46 

8  State  v.  Keller,  n  Lea  399.  N.  W.  790. 

9Davis    v.    Mason,    21    Mass.    (4  12Campbell  v.  Wood,  116  Mo.  196, 

Pick)    156;    Knox    v.    Clark,    123  22  S.  W.  796. 

Mass.  216.  "Wallace  v.  Goodall,  18  N.  H. 

439- 


§    579  SURVEYING   AND   BOUNDARIES  532 

be  proved  by  a  surveyor  that  the  line  claimed  by  plaintiff  is 
necessary  to  give  the  quantity  of  land  called  for  in  the  deed.14  A 
surveyor  may  testify  that  in  his  opinion,  the  marks  on  trees 
along  the  north  side  of  a  boundary  line  were  placed  on  the 
northeast  side  of  the  trees,  instead  of  the  south  side,  probably 
for  the  reason  that  they  would  be  there  better  protected  from 
the  sun.15  A  question  to  a  surveyor  as  to  whether  in  laying 
down  old  grants,  it  was  customary  to  give  the  course  of  streams 
accurately,  where  they  were  not  crossings  or  a  terminal,  is  ad- 
missible to  explain  discrepancies  between  the  description  and 
natural  objects.16  A  practical  surveyor  may  testify  whether, 
in  his  opinion,  certain  marks  on  trees,  or  other  marks  on  the 
ground,  were  intended  as  monuments  of  boundaries.17  In 
trespass,  the  field-notes  of  the  survey,  as  described  in  a  deed 
admitted  in  evidence,  did  not  close.  It  appeared  on  the  face  of 
the  deed  that  the  conveyancer,  in  copying  the  field-notes,  mis- 
took for  a  cipher  the  character  ordinarily  used  to  denote  de- 
grees, and  wrote  "N.  40  W.  194  vs."  instead  of  "N.  4°  W. 
194  vs."  Held  that  the  testimony  of  a  surveyor  was  admissible 
to  show  that  reading  the  call  "N.  4°  W.  194  vs."  would  close 
the  lines  and  give  the  quantity  called  for  in  the  deed.18  Thus 
the  court  applied  the  ordinary  rule  of  allowing  parol  evidence 
to  explain  a  latent  ambiguity  and  the  surveyor  testified  as  an 
expert,  applying  his  professional  skill  and  knowledge  in  giving 
his  answer. 

§  579.  Libel  or  slander  of  surveyor. — The  law  pertaining 
to  libelous  things  written  or  slanderous  remarks  made  of  a 
surveyor  in  his  professional  capacity  is  practically  the  same 
as  in  other  professions.  As  to  whether  the  particular  remark 

14Ratcliffe    v.    Gray,    42    N.    Y.  "Northumerland     Coal     Co.     v. 

(3  Keys)  510,  4  Abb.  Dec.  4.  Clement,  95  Pa.  126. 

15Dugger   v.   McKesson,    100    N.  18Coffey   v.   Hendricks,  66  Tex. 

Car.  i,  6  S.  E.  746.  676,  2  S.  W.  47. 

16Dugger   v.   McKesson,    100  N. 
Car.  i,  6  S.  E.  746. 


533  SURVEYORS LIABILITIES EXPERTS — RIGHTS        §    579 

made  or  written  about  a  surveyor  or  other  professional  person 
is  actionable  would  depend  on  the  circumstances  and  condi- 
tions under  which  it  was  made.  "It  is  not  necessary  to  descend 
to  vulgar  abuse,  or  to  make  specific  charges  of  crime,  in  order 
to  expose  one  to  hatred,  contempt,  or  ridicule,  or  to  injure  him 
in  his  business  or  occupation,"  we  are  told.19  In  the  Cole  case 
it  was  held  libelous  per  se  to  write  of  and  concerning  the  plain- 
tiff, a  minister  of  the  gospel,  an  applicant  for  a  pulpit,  "I 
would  not  have  anything  to  do  with  him  or  touch  him  with 
a  ten-foot  pole."  If  a  written  statement  as  ordinarily  used 
and  understood  would  tend  to  expose  one  "to  hatred,  con- 
tempt, ridicule,  or  obloquy,  or  which  shall  cause  or  tend  to 
cause  any  person  to  be  shunned  or  avoided  or  which  shall  have 
a  "tendency  to  injure  any  person,  corporation,  or  association 
of  persons  in  his  or  their  business  or  occupation"  it  would  be 
libelous.20  The  same  rule  would  apply  to  a  surveyor  as  was 
applied  to  the  clergyman  in  the  case  cited,  and,  if  the  libelous 
writing  or  slanderous  statements  tend  to  injure  him  in  his 
profession,  an  action  for  damage  would  lie. 

19Cole  v.   Millspaugh,   in   Minn.  20Cole  v.  Millspaugh,   in   Minn. 

159,   126  N.  W.  626,  28  L.  R.  A.  159,   126  N.  W.  626,  28  L.  R.  A. 

(N.  S.)    152,  137  Am.  St.  546,  20  (N.   S.)    152,   137  Am.  St.  546,  20 

Ann.  Cas.  717.  Ann.  Cas.  717. 


CHAPTER  XXIII 

PLATS  AND  PLATTING  LANDS 

Sec.  Sec. 

580.  Generally.  583.    Evidence. 

581.  Plat  must  be  made  and  ac-      584.    Owners    of    lots    in    platted 

knowledged   by   owner   of  lands    have     easements     in 

lands.  streets. 

582.  Estoppel. 

§  580.  Generally. — An  important  branch  of  surveying  is 
that  of  platting  or  subdividing  land  into  city  or  town  lots. 
Much  that  is  applicable  to  the  survey  of  farm  lands  applies 
equally  to  the  subdivision  of  lands  into  town  lots.  The  essen- 
tials of  such  subdivision  work  are :  First ;  A  well  defined 
boundary  of  the  tract  to  be  platted,  with  the  corners  carefully 
marked  by  permanent  monuments  to  which  reference  should 
be  made  on  the  plat.  The  plat  should  exactly  fit  the  tract  of 
land.  Second;  A  careful  survey  of  such  tract  into  streets, 
blocks,  lots  and  other  designations,  and  the  placing  of  stone 
or  iron  monuments  at  the  corners  of  all  blocks,  and  wooden 
or  iron  stakes  at  the  corners  of  all  lots.  Third;  The  platting 
of  the  subdivision  on  paper,  showing  all  blocks,  lots,  streets, 
alleys,  parks,  waters,  monuments,  size  of  lots,  widths  of 
streets  and  all  other  necessary  and  convenient  information  to 
enable  future  surveyors  to  retrace  the  lines  accurately.  Fourth ; 
The  certificate  of  the  surveyor  appended  thereto  showing  the 
making  of  a  proper  survey  and  plat.  The  plat  should  then 
be  executed  and  acknowledged  by  the  proprietor  of  the  property 
platted.  Fifth;  The  plat  should  then  be  recorded  in  the 
office  of  the  register  of  deeds  of  the  county  where  the  land  is 
situated  or  in  such  other  place  as  the  statutes  of  the  state  re- 

534 


535  !*f  PLATS  AND  PLATTING  LANDS  §    581 

quire.  Care  should  be  taken  to  avoid  all  errors  to  the  end 
that  all  proceedings  should  be  legal.  It  must  be  remembered 
that  the  title  to  property  and  other  rights  are  involved  in  the 
proceeding.  Most  dedications  of  land  for  streets,  alleys,  parks, 
squares,  and  frequently  school  and  church  sites,  are  made  by 
designating  such  on  the  plat. 

§  581.  Plat  must  be  made  and  acknowledged  by  owner  of 
lands. — It  is  required  in  most  jurisdictions,  if  not  all,  that  the 
proprietor  of  the  land  must  make  and  acknowledge  the  plat,1 
and  a  plat  not  acknowledged  is  not  entitled  to  be  recorded.2 
A  plat  made  by  an  administrator,  which  lays  out  no  blocks, 
lots,  or  streets,  does  not  subdivide  property  into  lots,  and  not 
being  acknowledged,  can  not  be  made  a  basis  of  statutory 
dedication.3  Under  the  laws  of  Michigan,  the  acknowledg- 
ment of  the  plat  by  the  proprietor  is  essential  to  a  dedication 
of  such  streets,  and  without  it  a  plat  has  no  force  in  itself  for 
any  purpose.4  And  a  map  of  an  addition  of  record  in  the  office 
of  the  recorder  is  not  inadmissible  in  evidence  because  not 
acknowledged.5  However,  the  rule  is  that  an  acknowledged 
plat  found  in  the  office  of  the  register  of  deeds  is  admis- 
sible in  evidence.6  An  instance  of  a  defective  acknowledg- 
ment of  a  plat  may  be  found  in  Baker  v.  St.  Paul.7  Held  not 
entitled  to  record,  and  that,  though  actually  recorded,  it  did 
not  operate  as  a  dedication  of  the  streets  on  it  to  the  public, 
unless  there  was  an  acceptance  by  the  public.  And  it  is  almost 
universally  held  that  a  plat  not  executed  and  acknowledged 
by  the  proprietor  of  the  land  is  invalid.8  But  where  the  owner 
of  the  land  plats  it  properly  as  an  addition,  has  plat  recorded, 
and  the  city  opens  the  streets  and  works  them  for  several  years, 

Armstrong  v.  Topeka,  36  Kans.  5Colton  Land  &  Water  Co.  v. 

432,  13  Pac.  843-  Swartz,  99  Cal.  278,  33  Pac.  878. 

2Allen  v.  Vincennes,  25  Ind.  531.          6Allen  v.  Vincennes,  25  Ind.  531. 

3Detroit  v.  Detroit  &  M.  R.  Co.,  7Baker  v.  St.  Paul,  8  Minn.  491 

23  Mich.  173.  (Gil.  436.) 

4Burton  v.  Martz,  38  Mich.  761.  8Thomas  v.  Eckard,  88  111.  593. 


§    581  SURVEYING  AND  BOUNDARIES  536 

it  is  immaterial,  so  far  as  a  dedication  is  concerned,  that  the 
plat  was  not  properly  acknowledged.9  And  the  plat  must  be 
properly  acknowledged  to  work  a  dedication  to  the  public.10 
Still  a  deed  referring  to  a  plat,  unacknowledged  and  unrecorded 
is  valid.11  The  owner  laid  out  a  town  site  upon  a  piece  of 
land;  filed  the  plat  thereof  in  the  office  of  the  register  of 
deeds;  all  blocks,  except  two  were  numbered  and  were  subdi- 
vided into  lots.  One  of  the  blocks,  not  subdivided  or  num- 
bered, was  marked  "Public  Square,"  the  other  being  marked 
"Seminary  Square."  The  former  was  used  as  a  park  by  the 
city;  the  latter  remained  vacant  until  all  of  the  lots  had  been 
sold.  Held  that  "Seminary  Square"  belonged  to  the  public 
for  seminary  purposes.12  A  plat  of  a  tract  of  land,  not  ac- 
knowledged, was  left  with  the  register  of  deeds,  but  it  was 
held  that  it  did  not  pass  title  to  the  city  of  land  designated 
thereon  as  streets  by  dedication.13  An  owner  of  a  lot  on  a 
plat  made  and  acknowledged  but  not  recorded,  sold  said  lot 
according  to  said  plat.  Held  the  owner  would  be  estopped 
from  denying  to  lot  purchasers  the  use  of  the  streets  marked 
on  said  plat.14  Where  an  owner  of  a  town  site  platted  same, 
showing  certain  lots  thereon,  designated  for  church  purposes, 
deeded  said  lots  to  a  church  but  the  deed  did  not  contain  any 
provision  therein  which  required  the  lots  to  be  so  exclusively 
used.  Held  that  the  owners  of  the  lots  adjacent  to  the  church 
lots  did  not  acquire  such  an  easement  as  would  prevent  use  of 
such  lots  for  other  than  church  purposes.15  Where  land  was 
platted  into  streets,  blocks  and  lots,  which  was'sold  with  refer- 

9Powell  v.  Gilman,  38  111.  App.  v.   Wilgus,   42   Kans.  457,  22   Pac. 

611;    Shea   v.    Ottumwa,   67    Iowa  615. 

39,  24  N.  W.  582.  13Gardiner  v.  Tisdale,  2  Wis.  153, 

10Brooks    v.    Topeka,    34    Kans.  60  Am.  Dec.  407. 

277,  8  Pac.  392.  14Donohoo    v.    Murray,    62    Wis. 

"Johnstone    v.    Scott,    n    Mich.  100,  22  N.  W.   167. 

232-  15Chapman    v.    Gordon,    29    Ga. 

12Board  of  Comrs.  of  Miami  Co.  250. 


537  "»  PLATS  AND  PLATTING  LANDS  §    583 

ence  thereto,  the  purchasers  acquired  the  right  to  have  the 
adjacent  streets  kept  open.16  Where  a  land  owner  lays  out  his 
land  and  makes  a  map  showing  the  lots  and  streets,  and  there- 
after conveys  lots  with  reference  to  such  map  or  plat,  such 
conveyance  confers  upon  the  grantee,  as  against  the  grantor, 
the  right  to  have  the  streets  open  at  both  ends,  although  the 
streets  were  never  accepted  by  the  public.17  Where  map  ac- 
companying a  grant  is  incorrect  as  to  lines  of  latitude,  it  may 
be  located  by  a  reference  to  natural  objects.18  Where  there  is 
a  conflict  between  field-notes  and  the  original  monuments,  the 
field-notes  must  yield  to  the  monuments.19  The  lines  actually 
run  control  over  maps,  plats,  or  field-notes.20 

§  582.  Estoppel. — Where  one  plats  a  town  site  and  leaves 
a  strip  one  hundred  feet  wide  running  through  the  town, 
which  he  designates  on  the  plat  as  "M.  St.'*,  and  he  and  his 
grantors  permit  the  public  to  use  such  strip  as  a  street  for  ten 
years  or  more,  he  is  estopped  from  claiming  that  the  entire 
one  hundred  feet  was  dedicated,  regardless  of  a  general  state- 
ment on  the  plat  that  "all  the  streets  are  sixty-six  feet  wide."21 

§  583.  Evidence. — Copies  of  an  official  map  of  a  survey 
deposited  in  the  surveyor-general's  office  are  held  to  be  the 
best  evidence  as  to  such  survey  and  parol  evidence  will  not 
be  received  that  a  private  survey  conforms  to  the  original 
survey  without  producing  a  copy  of  the  original  survey  also.22 

16Field  v.  Barling,  149  111.  556,  37  29  Minn.  49,  n  N.  W.  147;  Woods 

N.  E.  850,  24  L.  R.  A.  406,  41  Am.  v.  West,  40  Nebr.  307,  58  N.  W. 

St.  311.  938;  Hall  v.  Davis,  36  N.  H.  569; 

"Taylor  v.  Hopper,  62  N.  Y.  649.  Marsh  v.  Mitchell,  25  Wis.  706. 

18United    States    v.    Sutter,    (21  20Whiting    v.    Gardner,    80    Cal. 

How.)  170,  16  L.  ed.  119.  78,  22  Pac.  71 ;  Smith  v.  Boone,  84 

19McClintock  v.   Rogers,   11    111.  Tex.  526,  19  S.  W.  702. 

279;    Henry   v.    Richards,    52    Cal.  21  Smith  v.  Montgomery,  3  Idaho 

496;    Murphy   v.   Riemenschneider,  472,  31  Pac.  812. 

104  111.  520;  Turnbull  v.  Schroeder,  22Surget  v.  Little,  13  (5  Smed  & 

M.)    Miss.  319. 


§    5&4  SURVEYING  AND  BOUNDARIES  538 

§  584.  Owners  of  lots  in  platted  lands  have  easements  in 
streets.— It  is  the  law  that  owners  of  lots  in  a  plat  have  an 
easement  in  the  streets,  parks  and  public  grounds  shown 
thereon  and  the  proprietor  can  not  close  such  streets  without 
the  assent  of  such  owner.  Their  interest  is  founded  on  a 
consideration  so  to  speak.  They  are  a  part  of  the  benefits  pur- 
chased and  paid  for  at  the  time  of  the  purchase  of  the  lots. 
The  courts  have  frequently  passed  on  this  question,  and23  we 
find  the  Wisconsin  court  saying:  "When  land  is  so  divided 
into  lots,  and  a  plat  made,  and  the  lots  and  streets  marked 
thereon,  and  the  owner  sells  a  lot  so  designated  in  reference  to 
a  street  adjoining,  also  designated  on  the  plat,  and  for  a  con- 
sideration evidently  affected  by  its  situation  as  a  lot  on  a  pub- 
lic street,  he  is  estopped  from  depriving  the  purchaser  of  the 
use  of  the  street.  He,  at  least,  has  an  easement  in  such  street 
to  be  enjoyed  in  connection  with  the  lot,  of  which  the  grantor 
can  not  deprive  him,  whether  the  public  have  an  easement 
therein  as  a  public  highway  or  not."  Other  courts  hold  to 
the  same  effect.24  The  latter  and  numerous  other  cases  hold : 
"If  the  parties  to  a  deed  bound  the  land  conveyed  upon  a 
street,  they  are,  in  an  action  concerning  the  boundary  of  the 
land,  estopped  to  deny  the  existence  of  the  street,"  and  where 
the  fact  "that  the  lot  fronted  upon  two  ways,  which  would 
always  be  kept  open,  probably  entered  much  into  the  considera- 
tion of  the  purchase,  (they)  could  not  be  shut,  without  a  right 
to  damages  to  the  grantee  or  his  assignee."25 

23Donohoo   v.    Murray,   62  Wis.  157 ;  White  v.  Smith,  37  Mich.  291  ; 

100,  22  N.  W.   167.  Fox.  v.  Union  Sugar  Refinery,  109 

24Weisbrod  v.  Chicago  &  N.  W.  Mass.  292. 

Ry.  Co.,  21  Wis.  602;  Gardiner  v.          25Bartlett   v.   Bangor,    67   Maine 

Tisdale,  2  Wis.   153,  60  Am.  Dec.  460;  Bissell  v.  New  York  Cent.  R. 

407 ;   Kimball   v.   Kenosha,  4   Wis.  Co.,  23  N.  Y.  61 ;  Tallmadge  v.  East 

321;  Bigelow,  Estoppel,  306;  Parker  River  Bank,  26  N.  Y.  105;  Fisher 

v.  Smith,  17  Mass.  413,  9  Am.  Dec.  v.   Beard,  32  Iowa  346.  Ante  Ch. 

XX. 


CHAPTER  XXIV 

ADVERSE  POSSESSION 

Sec.  Sec. 

585.  Generally.  591.    Visible     and    notorious    pos- 

586.  Must  have  possession  of  the  session. 

thing.  592.    Possession  must  be  hostile. 

587.  What  constitutes  adverse  pos-       593.     Occupying    to    boundary    line 

session.  — Agreements,  etc. 

588.  Inferences      from      acts      of       594.     Possession  must  be  exclusive. 

party.  595.    Possession    must    be    contin*- 

589.  Who  may  acquire  title  by  ad-  uous. 

verse  possession.  596.     Tacking  possessions. 

590.  Possession — Actual    and    con- 

structive. 

§  585.  Generally. — It  is  not  the  intention  of  the  author  to 
go  into  the  question  of  adverse  possession  extensively  but  to 
briefly  state  the  main  points  associated  with  such  possession 
and  to  deal  with  that  question  insofar  as  it  may  be  re- 
lated to  lines  and  boundaries. 

The  author  has  heretofore  treated  of  ancient  fences1  and 
long  established  lines  as  evidence  of  original  corners  and  lines. 
So  also  has  reference  been  made  to  agreements  between  ad- 
joining owners  fixing  the  line  between  them  and  its  binding 
effect  on  the  parties.2 

The  object  of  this  chapter  is  to  give  the  professions,  briefly, 
an  idea  of  the  law  insofar  as  adverse  possession  affects  title  to, 
property,  and  to  impress  on  the  surveyor  the  importance  of 
possession  as  bearing  on  evidence  of  original  boundary  lines 
and  corners.  It  is  not  expected  that  the  surveyor  will  attempt 

iAnte  §  410.  2Ante   Ch.   XXL 

539 


§    586  SURVEYING  AND  BOUNDARIES  540 

to  advise  what  is  or  is  not  adverse  possession  and  when  and 
how  that  possession  may  ripen  into  a  title. 

The  surveyor  should  remember  that  courts  are  loathe  to 
change  boundaries  long  established  and  marked  by  ancient 
fences.  The  presumption  is  that  if  such  fences  have  been 
built  many  years  and  maintained  in  substantially  the  same 
place  during  all  those  years  that  they  were  built  on  the  original 
lines.3  Still,  if  the  original  monuments  can  be  found  and  iden- 
tified, they  must  govern  as  to  the  true  line.  Nevertheless,  if 
adjoining  owners  openly  occupy  up  to  a  certain  fence  and 
claim  title  thereto,  to  the  exclusion  of  all  the  world  during  the 
statutory  period,  they  will  be  held  to  have  title  up  to  such  old 
fence  regardless  of  the  true  line.  As  to  what  is  adverse  pos- 
session within  the  meaning  of  the  law,  authorities  will  be 
cited  in  the  following  pages. 

The  text  writers  and  the  courts  of  the  various  jurisdictions 
declare  that,  in  order  to  be  adverse,  the  possession  must  be 
actual,  visible,  exclusive,  hostile  and  extend  over  the  time  neces- 
sary to  create  a  bar  under  the  statutes  of  limitations  of  the 
particular  jurisdiction.  Should  any  of  these  conditions  be 
lacking,  the  possession  would  not  be  adverse  so  as  to  ripen  into 
a  title.  As  to  when  these  conditions  exist  is  a  question  of  fact 
to  be  determined  as  any  other  fact.  This  is  not  always  an 
easy  question,  as  there  are  various  elements  which  enter  into 
the  fact. 

§  586.  Must  have  possession  of  the  thing. — In  case  the 
owner  of  the  surface  seeks  to  establish  title  to  a  mine  by  ad- 
verse possession,  in  opposition  to  his  deed,  he  must  prove 
possession- of  the  mine  as  such,  independently  of  his  possession 
of  the  surface.*  A  possession  of  land  which  is  notice  of  the 
possessor's  claim  of  title  must  be  an  actual,  visible  occupancy 
and  improvement  of  the  same.  Fencing,  pasturing  cattle,  cut- 

8Ante  5  410.  *Caldwell    v.    Copeland,    37    Pa. 

427,  78  Am.  Dec.  436. 


541  ADVERSE  POSSESSION  §    586 

ting  and  selling  timber  are  not  sufficient.5  Gathering  seaweed 
on  land  is  evidence  of  adverse  possession.6  There  must  be  a 
real  and  substantial  inclosure,  an  actual  occupancy,  which  is 
definite,  positive  and  notorious,  to  constitute  adverse  posses- 
sion.7 Going  upon  the  land  occasionally  and  cutting  down 
trees,  deadening  timber,  and  fencing  in  a  cow  pen  are  not 
sufficient  to  prove  adverse  possession.8  Possession  must  be 
hostile,  continuous  and  exclusive  and  for  purpose  of  residence 
or  cultivation.  A  mere  annual  entry  upon  another's  land,  to 
cut  timber,  to  feed  cattle,  and  hunt  or  fish  can  not  give  title.9 
And  it  has  been  decided  that  if  one,  by  mistake,  inclose  the 
land  of  another,  and  claim  it  as  his  own,  to  certain  fixed  monu- 
ments or  boundaries,  his  actual  and  uninterrupted  possession 
for  the  statutory  period  will  work  a  disseisin,  and  his  title  will 
be  perfect.10  In  the  case  just  cited,  the  party  built  his  fence 
on  a  line  run  by  a  surveyor  and  occupied  the  land  up  to  that 
fence  and  claimed  it  as  his  own.  As  a  matter  of  fact,  it  was 
found  thereafter  that  the  surveyor  was  mistaken  as  to  about 
fifteen  feet.11  Acts  of  notoriety,  such  as,  building  a  fence 
around  the  land,  entering  upon  it  and  making  improvements 
thereon,  and  the  payment  of  taxes  on  the  land,  are  sufficient 
to  constitute  adverse  possession.12  Evidence  that  a  person  took 
possession  of  land  "about"  May  i,  1866,  and  remained  in  pos- 
session until  "about"  May  i,  1886,  is  not  sufficient  to  prove 
title  by  adverse  possession,  the  statute  of  limitation  being 


College    v.    Wheeler,    59  10Tex.  v.  Pflug,  24  Nebr.  666,  39 

Barb.  585.  N.  W.  839,  8  Am.  St.  231. 

6East  Hampton  v.  Kirk,  84  N.  Y.  ^Levy  v.  Yerga,  25  Nebr.  764,  41 

215,  38  Am.  Rep.  505.  N.  W.  773,  13  Am.  St.  525. 

7  Jackson     v.      Schoonmaker,      2  12Fourtelotte  v.  Pearce,  27  Nebr. 

Johns.  (N.  Y.)  229.  57,  42  N.  W.  915;  Ellicott  v.  Pearl, 

8Denham  v.  Holeman,  26  Ga.  182,  10  Pet.   (U.  S.)  412,  9  L.  ed.  475; 

71  Am.  Dec.  198.  Alden   v.   Gilmore,   13   Maine    178; 

9  Wheeler  v.   Winn,  53   Fa.   122,  Poignard  v.  Smith,  6  Pick.  1/2. 
91  Am.  Dec.  186. 


§    5^7  SURVEYING  AND   BOUNDARIES  542 

twenty  years.13  A  title  by  adverse  possession  once  acquired  is 
not  lost  by  an  interruption  of  the  possession  unless  by  some 
other  adverse  possession  for  the  required  period.14 

§  587.  What  constitutes  adverse  possession? — It  is  held  in 
Michigan15  Morse,  J,  that,  "It  is  not  necessary  that  the  occupa- 
tion should  be  such  that  a  mere  stranger  passing  by  the  land 
would  know  that  someone  was  asserting  title  to  and  dominion 
over  it.  It  is  not  necessary  that  the  land  be  cleared  or  fenced, 
or  any  building  be  placed  upon  it."16  In  the  Murray  case,  the 
question  up  was  as  to  what  constitutes  adverse  possession  of  a 
wood  lot  under  color  of  title.  In  that  case  the  court  further 
says :  "If  Bryce  entered  upon  the  land  under  his  deed  from 
Kitten,  and  used  it  thereafter  as  a  wood  lot  appurtenant  to  his 
farm  in  the  usual  and  ordinary  way,  and  exercised  such  acts 
of  ownership  over  it  as  were  necessary  to  enjoy  such  usual 
and  ordinary  use  of  a  wood  lot,  such  acts,  being  continued  and 
uninterrupted,  would  amount  to  actual  possession,  and  such 
possession,  being  under  color  of  title  and  a  claim  of  right,  and 
exclusive,  held  so  openly  and  notoriously  that  the  community 
understood  and  recognized  his  claim  of  ownership,  would  be 
adverse.  Such  adverse  possession,  continued  for  ten  years 
without  interruption,  would  bar  the  claim  of  the  plaintiff/'17 

Possession  must  be  open,  continuous  and  notorious.18  Mere 
entry  upon  land,  without  open,  continuous  and  adverse  pos- 
session is  not  sufficient  to  stop  the  running  of  the  statute.19 
In  an  Iowa  case20  the  jury  found  that  the  acts  of  possession 

13Allis  v.  Field,  89  Wis.  327,  62  Brooks  v.  Bruyn,  24  111.  372 ;  Davis 

N.  W.  85.  v.  Easley,  13  111.  192. 

14Dean  v.  Goddard,  55  Minn.  290,  "Murray   v.    Hudson,   65    Mich. 

56  N.  W.  1060.  670,   32   N.   W.  889. 

15Murray    v.    Hudson,   65    Mich.  18Mauldin   v.   Cox,   67   Cal.   387, 

670,  32  N.  W.  889.  7  Pac.  804. 

16Ellicott  v.  Pearl,  10  Pet.  412,  9  19Donovan   v.    Bissell,    53    Mich. 

L.  ed.  475;  Ewing  v.  Burnett,  Me-  462,  19  N.  W.  146. 

Lean  266,  affd.  n  Pet.  41,  9  L.  ed.  20Brown  v.  Rose,  55  Iowa  734,  7 

624;  Langworthy  v.  Myers,  4  Iowa,  N.  W.  136. 
18;  Booth  v.  Small,  25  Iowa  177; 


543          >  ADVERSE   POSSESSION  §    589 

were:  "Digging  and  hunting  for  a  corner,  and  bounding 
lines,  and  driving  cattle  into  the  land,  and  employing  a  man 
to  break  the  land  in  the  following  spring,"  and  the  court  held 
there  was  not  sufficient  evidence  to  bar  the  plaintiff's  right 
of  action. 

§  588.  Inferences  from  acts  of  party. — The  intent  to  claim 
by  adverse  possession  may  be  inferred  from  the  nature  of  the 
occupancy.  They  must  be  hostile.  Such  hostility  may  be 
manifested  by  acts  of  possession  and  use  of  the  premises, 
plainly  visible,  actual,  open,  and  continuous,  such  as,  using 
the  premises  for  many  years  as  a  lumber  yard,  building  a  barn 
and  shed  thereon  in  1866,  or  1867,  and  keeping  the  same  on 
the  premises  until  they  burned  down  in  1884,  and  keeping  a 
large  number  of  horses  on  the  premises  and  in  stables  for  many 
years.;  also  storing  machinery,  lamp  posts,  castings,  and  other 
personal  property,  putting  a  large  sign  on  the  lot,  with  notice 
thereon  that  it  was  for  rent.21  It  is  said  in  a  Pennsylvania 
case22  that  the  "adverse  possessor  'must  keep  his  flag  flying/  ' 
Yet  it  is  no  less  essential  that  the  actual  owner  should  reason- 
ably keep  his  own  banner  unfurled.  The  law  which  he  is  pre- 
sumed to  know,  is  a  continual  warning  to  him  that  if  he  shall 
allow  his  lands  to  remain  unoccupied,  unused,  unimproved  and 
uncultivated,  by  adverse  possession  for  a  long  period  of  time, 
fixed  by  law,  he  may  be  disseised  thereof,  and  deemed  to  have 
acquiesced  in  the  adverse  possession  of  the  adversary.23 

§  589.  Who  may  acquire  title  by  adverse  possession? — 
The  cases  are  agreed  that  any  person  or  corporation  may  ac- 
quire title  by  adverse  possession.2*  Possession  is  adverse  when 

21Dean  v.  Goddard,  55  Minn.  290,  24Giddens  v.  Mobley,  37  La.  Ann. 
56  N.  W.  1060.  900;  Hatch  v.  Lusignan,  117  Wis. 

22Stephens  v.  Leach,  19  Pa.  262.      428,  94  N.  W.  332. 

23Dean  v.  Goddard,  55  Minn.  290, 
56  N.  W.  1060. 


§  590 


SURVEYING  AND  BOUNDARIES 


544 


it  is  actual,  notorious,  continuous  and  exclusive.25  Title  of 
this  kind  with  various  limitations  may  be  acquired  against  in- 
fants,26 married  women,27  private  corporations,28  and  public 
corporations.29  In  the  latter  case  it  is  held  that  public  corpora- 
tions may  secure  title  by  adverse  possession.  A  foreign  cor- 
poration, it  is  said,30  may  acquire  title  by  adverse  possession. 
So  also  may  a  state  get  title  in  that  manner.31  But  the  statute 
does  not  run  against  the  state.32  Title  may  be  secured  by  an 
alien  by  adverse  possession.33  However,  see  other  cases.34 

§  59°-  Possession — Actual  and  constructive. — The  dis- 
seisor  must  be  in  actual  possession  of  the  land  to  disseise  the 
owner  and  gain  title.35  Such  possession  may  be  shown  by  a 
variety  of  acts.36  Some  acts  held  to  be  evidence  of  adverse 
possession  are :  Residence  on  the  land,87  the  erection  of  build- 
ings and  other  structures,38  inclosure  of  land  with  fence.39  But 
none  of  these  are  necessary.40  The  statutes  in  some  jurisdic- 
tions may  control  the  question  of  possession  and  lay  down  cer- 
tain requirements  such  as  residence,41  or  cultivation  of  the 


25Anderson  v.  Burnham,  52  Kans. 
454,  34  Pac.  1056;  Claflin  Co.  v. 
Middlesex  Banking  Co.,  113  Fed. 
958;  Owsley  v.  Matson,  156  Cal.  401, 
104  Pac.  983;  Wilder  v.  Aurora  & 
C  Traction  Co.,  216  111.  493,  75  N. 
E.  194. 

2«Killebrew  v.  Mauldin,  145  Ala. 
654,  39  So.  575- 

"Clark  v.  Gilbert,  39  Conn.  94- 

"Montecito  Valley  Water  Co.  v. 
Santa  Barbara,  144  Cal.  578,  77 
Pac.  1113. 

29 Victoria  v.  Victoria  Co.  (Tex. 
Civ.  App.),  94  S.  W.  368. 

»°St.  Paul  v.  Chicago  R.  &  C. 
Co.,  45  Minn.  387,  48  N.  W.  17. 

81Eldridge  v.  Binghamton,  120 
N.  Y.  309,  24  N.  E.  462. 

82Rhode  Island  v.  Massachusetts, 
4  How.  (U.  S.)  591,  ii  L.  ed.  1116. 


33Overing  v.  Russell,  32  Barb. 
(N.  Y.)  263. 

84Leary  v.  Leary,  50  How.  Prac. 
(N.  Y.)  122. 

35Zirngibl  v.  Calumet  &  C.  Dock 
Co.,  157  111.  430,  42  N.  E.  431  ; 
Ward  v.  Cochran,  150  U.  S.  597. 

86Eastern  Railway  Co.  v.  Allen, 
135  Mass.  13. 

8rHughes  v.  Pickering,  14  Pa.  St. 
297. 

88Goltermann  v.  Schiermeyer,  in 
Mo.  404,  19  S.  W.  484,  20  S.  W. 
161. 

39Illinois  Cent.  Ry.  Co.  v.  Hough- 
ton,  126  111.  233,  18  N.  E.  301,  i  L. 
R.  A.  213,  9  Am.  St.  581. 

*°Henry  v.  Henry,  122  Mich.  6, 
80  N.  W.  800. 

41Stumpf    v.    Osterhage,    94    111. 


545          X  ADVERSE  POSSESSION  §    590 

land.42  But  the  circumstances  should  be  taken  into  considera- 
tion. In  a  Kansas  case,43  the  claimant  plowed  twenty  twelve- 
inch  furrows  around  the  land,  built  a  house  and  stable  thereon, 
planted  300  fruit  trees,  herded  his  stock  thereon  and  remained 
in  undisputed  possession  and  this  was  held  adverse.  Such  claim- 
ant must  do  the  particular  acts  on  the  land  with  the  intention 
of  disseising  the  rightful  owner.44  The  owner  of  surface  must 
work  mines  to  gain  title  by  adverse  possession.  It  is  not  suffi- 
cient to  possess  the  surface  of  the  land.45 

In  order  to  recover  one  must  show  continuous,  actual,  visible, 
notorious,  exclusive  and  adverse  possession  of  the  lands;  he 
must  actually  hold  the  land  as  his  own ;  and  it  can  not  be  held 
jointly  with  owner;  nor  with  permission  of  the  owner.46  If 
possession  ripens  into  a  title  it  is  not  lost  by  any  repossession 
of  the  original  owner,  unless  that  possession  is  held  adversely 
for  the  statutory  period,  and  such  title  is  a  fee  simple  one.47 

Where  adverse  occupant  holds  land  without  color  of  title,  he 
can  secure  title  to  such  land  as  is  in  his  actual  occupancy  only.48 
But  constructive  possession  under  color  of  title  may  give  an 
adverse  holding  of  more  than  is  actually  occupied.49  It  seems 
that  the  reason  for  this  is  that  if  entry  be  made  without  color 
of  title,  there  is  no  notice  to  the  owner  of  claim  of  title.50 
Color  of  title  is  that  which  has  an  appearance  of  title  but  in 
fact  is  not  a  title  at  all.51 

42McFarlane   v.   Kerr,    10  Bosw.  Allen  v.  Allen,  58  Wis.  202,  16  N. 

(N.  Y.)  249.  W.  610. 

43Anderson  v.  Burnham,  52  Kans.  47Dean  v.  Goddard,  55  Minn.  290, 

454,  34  Pac.  1056.  56  N.  W.  1060. 

44Ewing   v.   Burnett,    I    McLean  48Coburn     v.     Hollis,     3     Mete. 

266,  affd.  ii  Pet.  (U.  S.)  41,  9  L.  (Mass.)    125. 

ed.  624.  49Noyes  v.  Heffernan,  153  111.  339, 

45 Algonquin  Coal  Co.  v.  Northern  38  N.  E.  571. 

Coal  &  Iron  Co.,   162  Pa.   114,  29  50Barber  v.   Robinson,  78   Minn. 

Atl.  402.  193,  80  N.  W.  968. 

46 Smith   v.   Hitchcock,  38   Nebr.  51  Wright   v.   Mattison,    18   How. 

104,  56  N.  W.  79i ;  Harvey  v.  Tyler,  (U.  S.)  50,  15  L.  ed.  280. 
2  Wall.  (U.  S.)  328,  17  L.  ed.  871 ; 


§    59 r  SURVEYING  AND  BOUNDARIES  546 

§  591.  Visible  and  notorious  possession. — In  order  to  se- 
cure title  by  adverse  possession,  the  owner  of  property  must 
have  had  actual  notice  of  the  possession,  or  the  possession  of 
the  disseisor  must  have  been  visible  and  notorious.52  What 
is  visible  and  notorious  possession  depends  on  the  facts  of  each 
case.53  Fencing  the  lands,54  cultivation,55  and  erection  of  build- 
ings,66 have  been  held  to  be  such  acts.  The  possession  must 
not  be  clandestine.57 

§  592.  Possession  must  be  hostile. — A  possession  subordi- 
nate to  the  owner  can  not  ripen  into  title.58  But  such  posses- 
sion may  thereafter  become  adverse  and  ripen  into  a  title/''9 
"Hostile,"  in  this  sense  does  not  imply  ill  will  toward  the  owner, 
but  means  an  occupant  who  holds  as  an  owner  and  against 
all  other  claims.60  In  order  to  be  hostile,  the  party  must  claim 
the  land  as  a  matter  of  right  to  the  exclusion  of  others.61  What 
is  adverse  or  hostile  possession  is  a  question  of  fact.62  Suing 
the  owner  for  trespass  by  one  in  possession  is  evidence  of 
adverse  possession.63  Declarations  by  the  adverse  holder  are 
evidence  of  such  possession.64  Such  declarations  were  that 
possessor  was  not  holding  as  a  tenant  01  the  alleged  owner.65 
Party  entering  by  consent  of  owner  may  thereafter  disclaim 
holding  by  such  consent  and  such  disclaimer  must  be  brought 

52 Van  Matre  v.  Swank,  147  Wis.  59Toney  v.  Knapp,  142  Mich.  652, 

93,  131  N.  W.  982,  132  N.  W.  904-  106  N.  W.  552. 

53Lake  Shore  &  M.  S.  Ry.  Co.  v.  60Ballard    v.    Hansen,    33    Nebr. 

Johnson,  157  Mich.  115,  121  N.  W.  861,  51   N.  W.  295. 

267.  61Kingston    v.    Guck,    155    Mich. 

"Cutter   v.   Cambridge,   6   Allen  264,  118  N.  W.  967. 

(Mass.)  20.  62Highstone  v.  Burdette,  54  Mich. 

65Wolf  v.  Ament's  Executors,   i  329,  20  N.  W.  64. 

Grant,  Cas.  (Pa.)   150.  63Hollister  v.  Young,  42  Vt.  403. 

56Foulke  v.   Bond,  41    N.   J.   L.  64Lamoreux  v.  Huntley,  68  Wis. 

527-  24,  31  N.  W.  33L 

57Edmondson    v.    Anniston    City  65Lamoreux  v.  Huntley,  68  Wis. 

Land  Co.,  128  Ala.  589,  29  So.  596.  24,  31  N.  W.  331. 

58Toney  v.  Knapp,  142  Mich.  652, 
106  N.  W.  552. 


547  V  ADVERSE  POSSESSION  §    593 

to  the  attention  of  the  owner.66  And  it  is  said,  in  a  Mississippi 
case  that  :67  "Among  relatives  and  especially  between  those  oc- 
cupying parental  and  filial,  or  quasi-parental  and  filial,  rela- 
tions, these  circumstances  would  not  be  deemed  so  convincing 
because  they  may  be  consistent  with  a  mere  permissive  enjoy- 
ment of  a  usufructuary  possession." 

§  593.  Occupying  to  boundary  line — Agreements,  etc. — 
We  have  heretofore  treated  of  the  question  of  parol  agreements 
with  reference  to  boundary  lines.68  Should  adjoining  owners 
agree  upon  a  line  between  their  respective  lands  and  each  oc- 
cupy up  to  that  line  claiming  title  thereto  for  the  statutory 
period,  it  will  be  deemed  to  be  an  adverse  occupancy.69  As 
to  whether  the  line  agreed  upon  was  the  true  line  is  imma- 
terial.70 But  if  parties  occupy  merely  for  convenience  the 
possession  of  adjoining  owners  will  not  generally  be  adverse.71 
Occupying  land  to  a  certain  line  by  mistake  with  no  intention 
to  claim  more  than  to  the  true  line,  will  not  be  adverse  beyond 
the  true  line.72  But  there  are  cases  holding  the  other  way.73 
Where  grantor  remains  in  possession  after  delivery  of  deed  the 
possession  will  not  be  deemed  adverse  generally.74  Same 
where  one  enters  under  contract  of  purchase.75  The  possession 
of  a  guardian  is  subordinate  to  ward,  and  a  widow  for  dower 
rights  to  the  heir.76  To  the  same  effect  is  the  possession  of  an 

66 Allen  v.  Allen,  58  Wis.  202,  16  72Shanline  v.    Wiltsie,   70   Kans. 

N.  W.  610.  177,  78  Pac.  436,  3  Ann.  Cas.  140. 

67Davis  v.  Bowmar,  55  Miss.  671.  73Erck  v.  Church,  87  Tenn.  575, 

68Ante.  ch.  XXI.  n  S.  W.  794,  4  L.  R.  A.  641. 

69Reed   v.   Fair,   35   N.   Y.    113;  74Stearns  v.  Hendersass,  9  Cush. 

Reiter  v.  Mcjunkin,  173  Pa.  82,  33  (Mass.)  497,  57  Am.  Dec.  65. 

Atl.  1012.  75Davis  v.  Howard,  172  111.  340, 

70Wells  v.  Bentley,  87  Ark.  625,  50  N.  E.  258. 

113  S.  W.  639.  76Brown  v.  McKay,  125  Cal.  291, 

71  Bird  v.  Stark,  66  Mich.  654,  33  57  Pac.  1001 ;  Dewitt  v.  Shea,  203 

N.  W.  754;  Burrell  v.  Burrell,  II  111.  393,  67  N.  E.  761,  96  Am.  St. 

Mass.  294.  311. 


§    594  SURVEYING  AND  BOUNDARIES  548 


agent  or  of  a  tenant/7  and  as  to  mortgagee  and  mort- 
gagor.78 

§  594.  Possession  must  be  exclusive. — It  is  the  rule  that 
possession  to  be  adverse  must  be  exclusive.  That  is,  there  can 
be  no  divided  possession  with  the  holder  of  the  legal  title.79 
When  two  persons  are  in  possession  the  seisin  follows  the 
owner.80  Possession  must  be  exclusive  of  all  persons.81  But 
it  seems  one  may  admit  title  in  the  United  States  or  a  state 
and  still  hold  adversely  as  to  all  others.82  But  occupation  in 
common  with  the  public  generally  cannot  be  exclusive.83 

§  595.  Possession  must  be  continuous. — Another  condition 
of  the  possession  in  order  to  be  adverse  and  ripen  into  title 
is  that  it  must  be  continuous.  The  party  can  not  get  title  by 
holding  a  part  of  the  period  and  then  surrendering  to  another 
the  lands  sought  to  be  taken.  To  so  give  up  the  possession 
before  the  statutory  period  has  run  will  wipe  out  all  rights 
theretofore  gained.84  Occasional  acts  of  dominion  extending 
over  the  statutory  period  is  not  continuous  possession.85 
When  possession  is  stopped,  the  running  of  the  statute  is  also 
stopped.  The  running  of  the  statute  will  begin  to  run  again 
upon  the  return  to  possession.86  Unless  modified  by  statute, 
the  entry  of  the  owner  into  possession  before  the  statutory 
period  has  run  will  interrupt  the  statute.87  And  it  is  not  neces- 

"Peabody  v.  Leach,  18  Wis.  657 ;  84Bean   v.   Bean,   163  Mich.  379, 

Dixon  v.  Finnegan,  182  Mo.  in,  81  128   N.   W.  413;   Mead  v.   Illinois 

S.  W.  449.  Cent.  Co.,  112  Iowa  291,  83  N.  W. 

"Jones  v.  Foster,  175  HL  459,  5*  979. 

N.  E.  862.  85Elyton  Land  Co.  v.  Denny,  108 

79Boltz  v.  Colsch,  134  Iowa  480,  Ala.  553,  18  So.  561. 

109  N.  W.  1106.  86Illinois    Steel    Co.    v.    Budzisz, 

80Bellis  v.  Bellis,  122  Mass.  414.  115  Wis.  68,  90  N.  W.  1019. 

81Cass  Farm  Co.  v.  Detroit,  139  "Lawless  v.  Wright,  39  Tex.  Civ. 

Mich.  318,  102  N.  W.  848.  App.  26,  86  S.  W.  1039. 

82Lord  v.  Sawyer,  57  Cal.  65. 

83Hittinger  v.  Eames,  121  Mass. 
539- 


549  ADVERSE  POSSESSION  §    596 

sary   to  bring   an   action    to   interrupt   the    running   of   the 
statute.88 

§  596.  Tacking  possessions. — By  tacking  is  meant  the 
transferring  of  the  possession  of  one  adverse  claimant  to  an- 
other. But  the  possession  of  the  privy  must  be  continuous  with 
his  grantor.89  Hence,  successive  periods  of  possession  may  be 
tacked  or  added  to  each  other,  and  the  total  time  held  forms 
the  entire  period  required  by  the  statute.90  But  there  must 
be  a  privity  between  the  parties.91  Tacking  may  exist  be- 
tween vendor  and  vendee;92  between  ancestor  and  heir  or 
devisee;93  also  between  landlord  and  tenant.94  But  there  must 
be  no  gap  between  the  occupants.95 

88Shearer  v.  Middleton,  88  Mich.  92Merritt  v.  Westerman,  165 

621,  50  N.  W.  737-  Mich.  535,  131  N.  W.  66. 

89Bird  v.  Whetstone,  71  Kans.  93Montague  v.  Marunda,  71 

430,  80  Pac.  942.  Nebr.  805,  99  N.  W.  653 ;  Sherin  v. 

90McNeely  v.  Langan,  22  Ohio  Brackett,  36  Minn.  152,  30  N.  W. 

St.  32.  S5i. 

"White  v.  McNabb,  140  Ky.  828,  94Schneider  v.  Botsch,  90  111.  577. 

131  S.  W.  1021.  95Warren  v.  Frederichs,  76  Tex. 

647,  13  S.  W.  643- 


CHAPTER  XXV 

HIGHWAY 

Sec.  Sec. 

5Q6a.  Generally.  603.  Vacation. 

597.  Laying  out.  604.  Non-user. 

598.  Survey  of  highway.  605.  Failure  to  open   or   repair. 

599.  Retracing  the  line  of  a  high-  606.  Fencing  in  parts  of  highway. 

way.  607.     Non-user      of      streets      dis- 

600.  Highway  by  user  or  prescrip-  tinguished   from  highways. 

tion.  608.     Elevation  in  highway  deflect- 

601.  The  user.  ing  travel. 

602.  Alteration. 

§  596a.  Generally.— Broadly  speaking,  the  term  "highway" 
includes  all  routes  open  to  the  general  public  for  passage, 
whether  by  land  or  water.  The  term  as  used  in  this  chapter 
refers  to  highways  on  land  and  includes  state,  county  and  town 
roads,  but  does  not  generally  include  streets  in  a  city  or  village. 
Many  states  have  a  dual  system  of  highways,  being  usually 
termed  state  roads,  county  roads,  and  town  roads.  Provision 
is  made  by  the  statutes  of  the  several  states  for  the  laying  out 
and  maintenance  of  such  highways,  and  the  student  should 
consult  the  laws  of  the  state  in  which  the  particular  highway 
may  be  located  Primarily,  state  roads  are  under  the  direct 
control  of  the  state,  though  a  state  may  yield  the  care  of  the 
particular  road  to  the  local  authorities.  Likewise,  county  roads 
are  under  the  direct  control  of  the  county  authorities.  In  the 
case  of  state  roads,  provision  is  made  by  law  for  laying  out 
and  the  opening  thereof.  A  commission  or  committee  is  usually 
appointed  for  such  purpose.  County  roads  are  laid  out  by  the 
county  board  of  commissioners  or  by  a  committee  intrusted 

550 


551  HIGHWAYS  §  597 

with  the  work.  What  is  said  in  this  work  with  reference  to 
laying  out  highways  is  intended  to  apply  generally  to  all  high- 
ways. The  student  will  note  that  the  author  speaks  in  general 
terms  and  not  specifically  as  to  any  state  law. 

The  surveyor  has  much  to  do  with  highways.  He  is  required 
to  make  a  careful  survey  thereof  at  the  laying  out  by  the  public 
authorities.  He  has  frequent  occasion  to  retrace  the  original 
surveyed  lines  of  the  highway.  He  must  know  the  exact  loca- 
tion of  the  original  corners  of  the  highway,  either  at  the  angles 
or  otherwise.  How  necessary  then  is  it  that  the  original  survey 
of  such  highway  be  accurately  executed,  monuments  perma- 
nently planted  at  the  beginning  and  ending  of  such  highway, 
and  at  each  angle  thereof,  and,  where  possible,  bearings  be  tak- 
en to  trees  or  other  natural  objects  in  the  vicinity.  In  this  way, 
much  trouble  and  possible  litigation  will  be  avoided.  Not  infre- 
quently it  will  be  found  that  the  fences  along  the  highway,  if 
shown  to  have  been  built  to  the  line  of  a  properly  laid  out  way, 
and  so  maintained,  will  aid  the  surveyor  in  locating  a  lost  corner 
or  a  lost  line  in  a  survey  of  adjacent  lands. 

§  597.  Laying  out. — The  statutes  of  the  several  states  pro- 
vide the  steps  necessary  for  acquiring  and  laying  out  a  public 
highway.  The  provisions  of  such  statutes  should  be  carefully 
followed.  In  general,  such  statutes  provide  for  the  initiation  of 
a  proceeding  to  lay  out  a  highway  by  a  petition  to  the  properly 
constituted  body  by  a  certain  number  of  "freeholders,"  "citi- 
zens/' or  "residents,"  of  the  particular  district.  Those  secur- 
ing such  a  petition  must  see  to  it  that  at  least  the  full  number 
of  statutory  petitioners  have  signed  such  petition  and  have  not 
withdrawn  therefrom.  Upon  the  filing  of  such  petition,  the 
proper  board  or  commission  or  trustees  will  proceed  to  give  the 
notice  required  by  the  statutes,  of  the  filing  of  such  petition  and 
of  the  time  and  place  of  the  meeting  of  the  "board"  to  decide  on 
the  necessity  of  laying  out  the  highway  and  acting  thereon. 
This  notice  should  be  duly  posted  and  served  in  the  manner 


§    59-8  SURVEYING  AND  BOUNDARIES 

provided  by  law  and  proof  thereof  filed  with  the  board  before 
any  other  steps  are  taken.  Notice  should  be  given  to  all  per- 
sons over  whose  lands  said  proposed  highway  is  to  run,  that 
they  may  appear  and  protect  their  interests  and  take  such  steps 
as  they  may  be  advised  in  the  premises.  The  assessment  of 
damages  and  the  allowance  of  benefits  are  provided  for  in  the 
statutes  and  the  order  of  the  board  in  this  respect  should  be 
made  with  great  care,  as  the  taking  of  private  property  for  a 
highway  is  involved.  By  all  means,  a  careful  attorney  should 
be  engaged  to  draw  up  all  the  papers  from  the  petition  to  the 
final  order.  There  should  be  no  guess  work.  Certainty  is 
required. 

§  598.  Survey  of  highway. — Af ter  the  board  or  other  body, 
having  the  power  to  lay  out  the  highway,  has  determined  that 
a  highway  shall  be  laid  out,  a  surveyor  should  be  engaged  to 
make  an  accurate  survey  thereof.  The  surveyor  should  estab- 
lish the  points  of  commencement  and  termination  thereof  with 
reference  to  the  original  government  corners;  also  all  inter- 
mediate corners  through  which  the  way  passes  and  the  corners 
at  all  angles  of  the  highway  "according  to  government  survey." 
These  corners  should  be  marked  by  stone  or  iron  monuments, 
securely  planted  in  the  ground,  and  at  such  a  depth  as  not  to  be 
easily  removed  or  disturbed.  Bearings  should  be  taken  to 
trees,  or  other  natural  objects  to  the  end  that  the  corners  may 
be  easily  relocated  in  case  they  should  be  covered  up  by  working 
the  highway  or  otherwise.  Full  and  complete  notes  should  be 
made  by  the  surveyor  of  all  distances,  bearings,  monuments, 
witness  trees  and  other  data,  and  these  should  be  recorded  in  the 
record  where  the  proceedings  are  required  to  be  recorded. 
When  allowable,  even  in  town  roads,  a  record  of  the  proceed- 
ings and  the  survey  should  be  recorded  in  the  office  of  the 
register  of  deeds  of  the  county.  Records  of  county  and  state 
roads  are  generally  required  to  be  recorded  in  the  office  of  the 
county  clerk  or  auditor  of  the  county  and  in  some  cases  in  the 


553          ~>  HIGHWAYS  §  599 

office  of  the  register  of  deeds.  The  point  of  commencement  of 
the  highway  should  always  be  with  reference  to  some  govern- 
ment corner  where  there  is  one  even  though  that  corner  be  not 
on  the  highway.  After  the  surveyor  has  established  the  center 
line  of  the  way,  he  will  at  all  corners  and  angles  and  at  inter- 
vals establish  the  side  lines,  in  order  that  fences  may  be  built 
at  the  proper  distance  from  such  center. 

§  599.  Retracing  the  line  of  a  highway. — Surveyors  are 
frequently  called  upon  to  retrace  the  original  line  of  a  way, 
which  has  become  lost  or  obliterated.  He  will  first  secure  a 
correct  copy  of  the  notes  of  the  laying  out  and  survey  of  the 
highway.  No  attempt  to  retrace  such  line  should  be  made  until 
this  is  done.  The  surveyor  will  then  go  to  the  locality  of  the 
highway  and  make  a  careful  search  for  all  corners  as  noted  in 
the  record  of  the  original  survey.  He  should  not  give  up 
searching  for  some  evidence  of  the  original  corners  until  he 
is  satisfied  that  the  corner  is  lost.  He  should  find  as  many 
of  the  original  corners  as  possible  and  from  them  and  the 
other  data  establish  those  which  are  lost.  Should  the  way 
run  along  a  section  or  subdivisional  section  line,  the  problem  is 
practically  a  re-establishment  of  such  line  or  lines.  Should 
the  highway  run  a  diagonal  course  and  be  described  by  metes 
and  bounds,  the  surveyor  would  have  a  more  difficult  job.  In 
such  cases,  he  should,  if  possible,  find  one  or  more  of  the 
original  lines  and  then  carefully  measure  and  take  the  bearing 
of  such  line,  adjusting  his  tape  and  instrument  to  correspond 
therewith.1  He  will  then  proceed  to  establish  the  remaining 
lines  and  corners.  If  fences  were  originally  built  to  the  line 
of  the  way  or  with  reference  to  such  line  and  have  been  main- 
tained for  many  years  in  substantially  the  same  place,  the 
surveyor  should  heed  such  evidence  in  cases  where  the  original 
corners  are  apparently  lost.  "Ancient  fences,"  where  clearly 
proved,  are  better  evidence  of  where  the  original  corner  stood 

iAnte  Ch.  XV. 


§    600  SURVEYING  AND  BOUNDARIES  554 

than  can  be  obtained  by  a  resurvey  where  the  corners  are 
apparently  lost.2  As  a  matter  of  fact,  corners  are  not  lost 
where  they  can  be  established  by  a  reference  to  such  fences. 

§  600.  Highway  by  user  or  prescription. — A  highway  may 
exist  even  though  no  proceeding  to  lay  out  and  establish  it 
was  ever  taken  or  had.  Such  ways  are  termed  highways  by 
"user."  They  are  formed  by  the  public  traveling  along  a 
certain  section  of  country  for  a  number  of  years  equal  to  or 
greater  than  the  statutory  period  for  a  prescriptive  title.  Such 
highways  have  existed  from  a  very  early  period  in  all  coun- 
tries and  the  rights  of  the  public  to  have  such  a  way  kept  open 
are  absolute.  The  author  will  briefly  touch  on  this  important 
branch  of  highways.  Such  a  way  may  exist  by  user  in  all  of 
the  states.3 

§  60 1.  The  user.— In  order  that  a  highway  be  established 
by  prescription  or  user,  it  must  have  been  used  by  the  general 
public,  with  either  actual  or  constructive  notice  to  the  owner 
of  the  land  over  which  it  runs.  Such  user  must  have  been 

2Ante  Ch.  XVI ;  ante  §  410.  B8o ;  Longworth  v.  Sedevic,  165  Mo. 

8Cross  v.  State,  147  Ala.  125,  41  221,  65  S.  W.  260;  State  v.  Au- 

So.  875 ;  Waring  v.  Little  Rock,  62  chard,  22  Mont.  14,  55  Pac.  361 ; 

Ark.  408,  36  S.  W.  24 ;  Barnes  v.  Prichard  v.  Atkinson,  3  N.  H.  335 ; 

Daveck,  7  Cal.  App.  220,  94  Pac.  Riverside  Tp.  v.  Pennsylvania  Ry., 

779;  Ely  v.  Parsons,  55  Conn.  83,  74  N.  J.  L.  476,  66  Atl.  433;  Speir 

10  Atl.  499;  Southern  Ry.  Co.  v.  v.  Utrecht,  121  N.  Y.  420,  24  N.  E. 

Combs,  124  Ga.  1004,  53  S.  E.  508;  692;  Stewart  v.  Frink,  94  N.  Car. 

Chicago  v.  Borden,  190  111.  430,  60  487,  55  Am.  Rep.  618;  Walcott  Tp. 

N.  E.  915 ;  Ross  v.  Thompson,  78  v.  Skauge,  6  N.  Dak.  382 ;  Wallowa 

Ind.  90;  Whetstone  v.  Hill,  130  Co.  v.  Wade,  43  Ore.  253,  78  Pac. 

Iowa  637,  105  N.  W.  193;  Meade  892;  Commonwealth  v.  Cole,  26  Pa. 

v.  Topeka,  75  Kans.  61,  88  Pac.  574;  St.  187;  State  v.  Washington,  80 

Riley  v.  Buchanan,  116  Ky.  625,  76  S.  Car.  376;  Wilson  v.  Acree,  97 

S.  W.  527,  63  L.  R.  A.  642,  3  Ann.  Tenn.  378,  37  S.  W.  90;  Heilbron 

Cas.  788 ;  State  v.  Wilson,  42  Maine  v.  St.  Louis  S.  W.  Ry.,  52  Tex.  Civ. 

p;  Thomas  v.  Ford,  63  Md.  346,  52  App.  575,  113  S.  W,.  610;  State  v. 

Am.  Rep.  513;  Clark  v.  Hull,  184  Rixie,  50  Wash.  676,  97  Pac.  804; 

Mass.  164,  68  N.  E.  60;  Kruger  v.  State  v.  Lloyd,  133  Wis.  468,  H3 

Le  Blanc,  70  Mich.  76,  37  N.  W.  N.  W.  964. 


555        ^  HIGHWAYS  §  601 

open,  continuous,  uninterrupted  and  adverse  for  the  statutory 
period,  for  the  accrual  of  prescriptive  rights,  and  under  a 
claim  of  right  by  the  users.4  In  a  Wisconsin  case,5  the  court 
says :  "It  would  seem  that  when  a  town  for  more  than  twenty 
years,  pursuant  to  proceedings  laying  out  a  highway,  opens 
one  on  a  four-rod  strip  of  land  fenced  out  for  that  purpose  and 
thereby  gains  a  right  by  adverse  possession  to  use  that  particu- 
lar strip  for  such  highway,  it  must  in  all  reason  supersede  the 
laid-out  way  so  far  as  the  two  do  not  coincide."  But  it  is  held 
in  an  Iowa  case,6  that  "Use  alone,  with  no  evidence  of  a  claim 
of  right,  would  not  ripen  into  a  highway  by  user."  The  road 
must  have  been  used  without  interruption  of  the  land  owner. 
If  he  closed  the  highway  by  erecting  gates  across  the  same 
there  could  be  no  way  established  by  user.7  The  use  must  be 
adverse  to  that  of  the  owner  and  not  subservient  thereto.8  If 
a  way  be  used  by  the  public  with  a  claim  of  right  to  such  use 
and  the  public  authorities  perform  work  thereon  for  the  statu- 
tory period  the  way  becomes  a  public  one  to  the  extent  worked 
and  used.9  It  is  said  in  a  Nebraska  case  that,10  "But  where  it 
is  sought  to  show  the  existence  of  a  legal  public  road  by  user 
alone,  it  must  have  been  with  the  knowledge  of  the  owner, 
and  have  continued  the  length  of  time  necessary  to  bar  an 
action  to  recover  the  title  to  land,  which  in  this  state  is  ten 
years."  "This  rule,  however,"  the  court  goes  on  to  say,  "does 
not  apply  when,  as  in  this  case,  the  user  is  of  wild,  uninclosed 

4Howard  v.   State,  47  Ark.  431,  6Friday  v.  Henah,  113  Iowa  425, 

2  S.  W.  331 ;  Hartley  v.  Vermillion,  85  N.  W.  768. 

141  Cal.  339,  74  Pac.  987;  Haan  v.  7Mills   v.   Evans,   100  Iowa   712, 

Meester,  132  Iowa  709,  109  N.  W.  69  N.  W.  1043. 

2i I ;  Parkey  v.  Galloway,  147  Mich.  8Falter  v.  Packard,  219  111.  356, 

693,  in  N.  W.  348;  Longworth  v.  76  N.  E.  495. 

Sedevic,  165  Mo.  221,  65  S.  W.  260;  9Rhodes  v.  Halvorson,  120  Wis. 

State  v.   Lloyd,   133  Wis.  468,    113  P9,  97  N.  W.  514. 

N.  W.  964.  10Graham    v.    Hartnett,    10   Neb, 

5State   v.    Lloyd,    133    Wis.   468,  517,  7  N.  W.  280. 
113  N.  W.  964. 


§    6O2  SURVEYING  AND  BOUNDARIES  556 

prairie  land."11  The  latter  statement  is  too  broad.  It  seems 
the  distinction  between  wild,  uninclosed  land  and  occupied 
lands  is  that  the  occupation  and  use  must  be  more  pronounced 
in  the  former  than  in  the  latter.12  And  in  such  cases,  the 
owner  must  be  shown  to  have  had  knowledge  of  the  adverse 
user.13 

§  602.  Alteration.— The  matter  of  the  alteration  of  a  high- 
way may  be  by  user  of  lands  outside  and  beyond  the  highway, 
as  originally  laid  out,  or  used,  or  it  may  be  by  the  act  of  the 
public  authorities.  If  the  alteration  be  by  the  public  authori- 
ties, the  same  degree  of  care  in  drawing  all  of  the  papers  and 
making  the  survey  is  required  as  in  laying  out  the  way  orig- 
inally. What  we  have  said  in  that  respect  applies  also  to  the 
matter  of  alteration. 

Alteration  by  user  must  be  of  the  same  kind  and  for  the 
length  of  time  required  for  securing  a  highway  by  user.  In 
fact,  it  is  making  a  highway  by  user  and  all  of  the  conditions, 
such  as  adverse  and  continuous  use  for  the  entire  statutory 
period  must  be  met.14  And  still,  as  we  shall  see,  a  slight  de- 
viation from  the  highway,  as  laid  out,  to  avoid  some  obstacle 
or  by  error  will  not  amount  to  a  vacation  of  the  way  as  laid 
out.15 

§  603.  Vacation. — A  highway,  either  laid  out  by  the  public 
authorities,  or  acquired  by  user,  may  be  vacated  by  the  public 
authorities  or  lost  by  non-user.  The  statutes  of  the  several 
states  make  provision  for  such  vacation  by  act  of  the  public 
board  or  trustees.  In  order  that  the  vacation  be  legal,  those 

"State  v.  Kansas  City  &  C.  R.,          14Taylor  v.   Pearce,   179  111.   145, 

45  Iowa  139.  53  N.  E.  622. 

12O'Connell  v.  Chicago  Terminal          15Maire  v.    Kruse,   85    Wis.   302, 

T.  Ry.  Co.,  184  111.  308,  56  N.   E.  55   N.   W.  389,   26  L.   R.   A.   449; 

355-  Konkel  v.  Pella,  122  Wis.  143,  99 

18Gray  v.  Haas,  98  Iowa  502,  67  N.  W.  453. 
N.  W.  394 ;  Van  Wanning  v.  Deeter, 
78  Nebr.  282,  no  N.  W.  703. 


557  HIGHWAYS  §   605 

statutes  should  be  consulted  and  followed  in  the  particular  in- 
stance. The  same  degree  of  care  in  drawing  the  papers  is 
required  as  for  originally  laying  out  such  way. 

§  604.  Non-user. — As  we  have  seen  in  this  chapter,  a  high- 
way may  be  lost  by  non-user.  And  the  law  will  raise  a  pre- 
sumption of  the  extinguishment  of  the  highway  which  has 
been  abandoned  by  the  public  for  the  statutory  period.  Or, 
if  there  is  no  statutory  provision,  the  abandonment  should  be 
for  twenty  years.16  What  would  be  an  abandonment  of  a 
highway  in  a  particular  instance  will  depend  upon  the  facts 
and  circumstances  in  that  case.  There  must  be  a  clear  intent 
upon  the  part  of  the  public  to  abandon  the  road  and  such  in- 
tent to  abandon  and  abandonment  must  be  clearly  and  satis- 
factorily established.17  Non-user  must  be  coupled  with  posi- 
tive evidence  of  an  intent  on  the  part  of  the  public  to  aban- 
don.18 If  there  is  no  use  of  the  premises  adverse  to  the  rights 
of  the  public  there  must  be  evidence  of  a  positive  determination 
on  the  part  of  the  public  to  abandon.19 

§  605.  Failure  to  open  or  repair. — Most  of  the  states  have 
statutes  providing  that  a  highway  shall  be  deemed  to  be  aban- 
doned upon  failure  of  the  authorities  to  open,  work  or  repair 
the  highway  for  a  certain  number  of  years.20  Mere  delay  in 
opening  and  neglect  to  work  or  repair,  in  the  absence  of  a 
statute,  will  not  work  an  abandonment  of  itself.21  Still  prop- 
erty which  has  been  taken  for  a  highway  should  be  opened  and 

16Greist   v.    Amrhyn,    80   Conn.  Paddock,  56  Hun.  (N.  Y.)  288,  9 

280,  68  Atl.  521 ;  Heller  v.  Cahill,  N.  Y.  S.  381,  30  N.  Y.  St.  461. 
138  Iowa  301,  115  N.  W.  1009.  19Davies   v.    Huebner,   45    Iowa 

17Small  v.  Binford,  41  Ind.  App.  574. 

440,  83  N.  E.  507;  Perry  v.  Staple,          20Seidschlag  v.  Antioch,  207  111. 

77  Nebr.  656,  no  N.  W.  652;  Cox  280,  69  N.  E.  949;  Buffalo  v.  Del- 

v.  Commissioners,   194  111.  355,  62  aware  R.  Co.,  190  N.  Y.  84,  82  N. 

N.    E.   791 ;    Lyons   v.   Mullen,   78  E.  513,  16  L.  R.  A.  (N.  S.)  506. 
Nebr.  151,  no  N.  W.  743-  21Impson  v.  Sac.  Co.  (Iowa),  98 

18Re  Jerome,  120  N.  Y.  App.  Div.  N.  W.  118. 
297,  105  N.  Y.  S.  319;  Woodruff  v. 


§    606  SURVEYING  AND   BOUNDARIES  558 

used  as  such  within  a  reasonable  time,  and  a  failure  to  so  open 
and  use  it,  in  the  absence  of  a  statute,  will  operate  as  an  aban- 
donment.22 But  these  statutory  provisions,  it  has  been  held, 
do  not  apply  to  a  highway  which  has  once  been  opened  and 
used.23  Nor  would  it  apply  to  a  case  where  a  new  highway 
has  been  laid  out  over  an  old  one,  as  in  that  event  the  laying 
of  the  new  way  indicates  a  determination  to  maintain  a  high- 
way at  that  point.24  If  the  particular  statute  applies  to  a 
county  highway  only,  it  would  not  affect  a  street  in  a  city 
or  village.25 

§  606.  Fencing  in  parts  of  highway. — It  is  the  rule  that  the 
mere  fact  that  a  party  had,  for  many  years,  encroached  upon 
a  road  by  putting  a  portion  of  his  fence  in  the  road,  and  other- 
wise, did  not  bar  the  town  from  the  legal  right  of  having  the 
road  at  any  time  opened  to  its  full  width  as  originally  sur- 
veyed and  laid  out.26  And  where  non-users  of  lands  dedicated 
to  the  public  use,  before  the  time  they  were  required  for  such 
use,  or  the  authorities  properly  called  upon  to  open  them,  this 
will  not  operate  as  an  abandonment  of  the  public  rights,  and 
persons  in  possession  will  be  presumed  to  hold  subject  to  such 
rights.27  But  negligence  and  unreasonable  delay  in  proceeding 
to  open  a  dedicated  street,  after  the  necessity  thereof  arises, 
may  operate  as  an  abandonment  by  non-user,  but  the  question 
is  one  of  fact.28  A  highway  or  any  portion  of  it  can  be  lost 
by  non-user,  but  that  will  not  affect  the  portion  kept  in  use.29 
Highways  may  be  wholly,  and  there  is  no  reason  to  hold  they 

22Clendaniel  v.  Conrad,  3  Boyce  64  N.  W.   1001 ;   Childs  v.  Nelson, 

(Del.)  549,  83  Atl.  1036,  Ann.  Cas.  69  Wis.  125,  33  N.  W.  587. 

IQIS  B,  968.  27Reilly  v.  Racine,  51   Wis.  526, 

23Eble  v.  State,  77  Kans.  179,  93  8  N.  W.  417. 

Pac.  803,  127  Am.  St.  412.  28Reilly  v.  Racine,  51   Wis.   526, 

2*9  L.  R.  A.  94,  note.  8  N.  W.  417. 

"Wallace  v.  Cable,  87  Kans.  835,  29Wayne  Co.  Bank  v.  Stockwell, 

127   Pac.  5,  42  L.  R.  A.   (N.  S.)  84  Mich.  586,  48  N.  W.  174,  22  Am. 

587.  St.  708. 

26Nicolai  v.  Davis,  91  Wis.  370, 


559  HIGHWAYS  §    607 

may  not  be  partially,  discontinued  by  non-user.80  A  highway 
may  be  lost  by  non-user  for  a  period  of  fifteen  years.31  The 
owner  of  lands  adjoining  a  highway,  having  fenced  in  a  part 
of  such  highway  and  cultivated  it  for  thirty  years  or  more 
worked  an  abandonment  of  that  part  of  the  highway  fenced 
in.32  The  Supreme  Court  in  Iowa  holds :  "Mere  non-user  of 
an  easement  of  this  character  and  acquired  in  this  manner  will 
not  operate  to  defeat  the  right.  Especially  is  this  so  when 
there  is  no  use  of  the  premises  adverse  to  the  rights  of  the 
public.33  But  the  same  court  has  held  that  the  public  was 
estopped  from  claiming  the  highway  where  an  adjacent  owner 
has  held  either  a  part  or  the  entire  width  adversely  to  the 
public  for  the  statutory  period.34 

§  607.  Non-user  of  streets  distinguished  from  highways. — 
The  courts  have  laid  down  a  different  rule  as  to  aban- 
donment of  street  in  cities  and  villages  by  non-user,  and  the 
rule  with  reference  to  such  abandonment  of  highways  in  the 
country  districts,  does  not  apply  thereto.  It  appears  that  the 
rule  as  applied  to  cities  is  that  there  can  be  no  abandonment 
of  a  street  in  a  city  for  non-user  until  the  street  is  needed  in 
the  public  interests.35  It  is  said:  "The  public  use  is  the 
dominant  interest,  and  the  public  authorities  are  the  exclusive 
judges  when  and  to  what  extent  the  streets  shall  be  im- 
proved."36 And  it  would  seem  that  there  is  sound  reasoning 
back  of  these  decisions  and  a  village  or  city  ought  not  to  be 
estopped  from  claiming  a  street  which  has  been  fenced  in  un- 

30Gregory    v.    Knight,    50    Mich.  35Reilly  v.  Racine,  51   Wis.  526, 

61,  14  N.  W.  700.  8  N.  W.  417;  'Childs  v.  Nelson,  69 

81Lyle  v.  Lesia,  64  Mich.  16,  31  Wis.  125,  33  N.  W.  587;  Chase  v. 

N.  W.  23.  Oshkosh,  81    Wis.  313,   51    N.   W. 

32Coleman  v.  Flint  &  P.  M.  Ry.  560,   15  L.   R.  A.  553,  29  Am.  St. 

Co.,  64  Mich.  160,  31  N.  W.  47.  898. 

33Davies    v.    Huebner,    45    Iowa  36Chase  v.  Oshkosh,  81  Wis.  313, 

574-  Si  N.  W.  560,  15  L.  R.  A.  553,  29 

34Orr  v.   O'Brien,  77   Iowa  253,  Am.  St.  898. 
42  N.  W.  183,  14  Am.  St.  277. 


§  6o8 


SURVEYING  AND  BOUNDARIES 


560 


lawfully  by  some  private  individual  in  those  cases  where  the 
street  at  the  time  and  place  of  the  encroachment  was  not 
needed.37 

§  608.     Elevation  in  highway  deflecting  travel. — Referring 
to  Fig.  113,  point  B,  represents  the  corner  common  to  sec- 

A 

i 

I 


Sec.  10 


I 

I 


Plaintiff 


O     Vacated  Wan 


Sec  H 


Defendant 


Sec 


ggg-  * ca^sy 


Defendant 
Fiq.l)3 


Sec  14 


tions  10,  n,  14  and  15  of  a  certain  township.  The  plaintiff 
owns  a  small  tract  of  land  in  the  southeast  corner  of  section 
10,  and  the  defendant  owns  the  lands  in  the  corners  of  the 
other  sections  adjacent  to  the  common  corner.  A  highway 


87 Webb  v.  Demopolis,  95  Ala.  116,      v.  Weston,  46  W.  Va.  544,  33   S. 
13  So.  289,  21  L.  R.  A.  62 ;  Ralston      E.  326,  76  Am.  St.  834. 


561  HIGHWAYS  §    608 

was  originally  laid  out  on  the  section  line  running  east  D-B-C 
and  another  on  the  line  running  north  between  sections  10 
and  ii  A-B.  Subsequently,  that  part  of  the  east  and  west 
highway  west  of  the  common  corner  D-B  was  vacated.  There 
is  a  considerable  elevation  represented  on  the  figure  about 
the  corner  B.  In  order  to  avoid  this  hill  the  public  had  trav- 
eled a  diagonal  path  across  the  corner  of  section  1 1  represented 
on  plan  as  E-F.  The  plaintiff  was,  therefore,  shut  off  from 
a  highway.  The  defendant  fenced  in  the  highway  as  traveled, 
leaving  about  one-half  acre  of  land  in  the  corner  in  the  form 
of  a  triangle.  This  diagonal  highway  had  been  traveled  a 
good  many  years  and  there  had  been  no  travel  along  the  north 
and  south  highway  represented  by  B-E  or  the  east  and  west 
highway  represented  by  B-F  for  a  period  greater  than  the 
statutory  period  for  abandonment.  Plaintiff  brought  the  ac- 
tion in  equity  to  compel  defendant  to  remove  the  fences  to  the 
end  that  he  might  find  a  passage  out  either  over  B-E  or  B-F. 
The  court  held  that  there  could  be  no  abandonment  in  such 
cases :  that  there  was  no  intention  to  abandon  and  that  it  was 
the  duty  of  the  public  authorities  to  put  the  highway  in  shape 
for  travel.  The  court  speaking  through  Orton  J.  says :  "This 
highway,  as  such,  has  not  ceased  to  be  traveled.  It  is  traveled 
all  the  time  with  this  slight  variation.  It  is  the  same  highway 
as  it  was  before  the  defendant  cut  off  the  plaintiff  from  its 
use  at  this  place  by  fencing  it  up  a  few  rods.  The  highway 
runs  along  that  side  hill,  which  the  town,  on  account  of  the 
expense,  failed  and  neglected  to  excavate  and  grade  so  that 
it  might  be  traveled  and  used;  and  the  traveling  public  was 
compelled  to  go  around  it.  The  highway  must  be  'entirely 
abandoned  as  a  route  of  travel/  The  abandonment  of  a  high- 
way as  a  route  of  travel  implies  that  such  highway  is  not 
needed  for  travel,  and  therefore  disused  and  abandoned  as  a 
highway.  But  this  highway,  even  along  the  side  hill,  is  needed 
as  much  as  ever,  and  it  was  the  duty  of  the  town  to  have  made 


§    608  SURVEYING   AND   BOUNDARIES  562 

it  fit  for  travel.  Whatever  abandonment  of  this  little  piece  of 
the  highway  there  was  consisted  in  the  neglect  of  the  town  to 
make  it  passable;  and  the  public  has  been  compelled  to  go 
around  it.  Such  a  construction  of  the  statute  as  is  claimed  is 
utterly  unreasonable  and  would  work  great  mischief  to  our 
highways/'38  Doubtless  the  court,  in  the  above  case,  was  in- 
fluenced largely  by  the  reading  of  the  statute.  Such  statute 
reads:  "Any  highway  in  this  state  which  shall  have  been,  or 
may  hereafter  be,  entirely  abandoned  as  a  route  of  travel,  and 
on  which  no  highway  tax  has  been  expended  for  five  years, 
shall  be  considered  legally  discontinued,  and  the  land  of  said 
highway  shall  revert  to  the  owners."  The  statute  robs  the 
decision  of  much  of  its  weight  as  a  general  proposition  of  law 
by  reason  of  its  peculiar  reading,  and  still  the  reasoning  is 
sound.39 

38  Maire  v.  Kruse,  85  Wis.  302,          39Witter  v.  Damitz,  81  Wis.  385, 
55  N.  W.  389,  26  L.  R.  A.  449-  Si  N.  W.  575- 


CHAPTER  XXVI 

SURVEYS  OF  ORIGINAL  THIRTEEN  STATES 

Sec.  Sec. 

609.  Generally.  616.    New  Hampshire. 

610.  Macomb's    Purchase    in    New      617.     Pennsylvania. 

York.  618.    General  rules. 

611.  The     Holland     Purchase     in      619.    Monuments  on  the  ground. 

New  York.  620.    Adjoining  tracts  or  adjoiners. 

612.  Townships.  621.    Block  surveys. 

613.  Resurveys  and  subdivisions  of      622.    Connecticut. 

lots.  623.    Maryland. 

614.  How   to   secure    information.      624.    Other  states. 

615.  Triangulation  surveys. 

§  609.  Generally. — It  must  be  remembered,  as  heretofore 
suggested,  that  the  United  States  never  owned  any  of  the 
public  lands  in  the  thirteen  original  states.  The  public  lands 
in  those  states  were  retained  by  the  states  on  the  adoption  of 
the  constitution.  As  we  have  seen,  the  rectangular  system 
for  the  survey  of  the  public  lands  of  the  federal  government 
was  inaugurated  under  the  old  articles  of  Confederation  in 
1785,  and  provided  the  manner  of  the  survey  thereafter  of  all 
public  lands  owned  by  the  national  government.  A  con- 
siderable part  of  the  state  lands  owned  by  the  thirteen  original 
states  was  surveyed  thereafter  but  none  of  such  lands  appears 
to  have  been  surveyed  under  the  rectangular  system,  proper. 

§  610.  Macomb's  Purchase  in  New  York. — This  purchase 
was  an  irregular  one,  containing  3,670,715  acres.  It  lay  along 
the  east  end  of  Lake  Ontario  and  extended  down  the  river 
St.  Lawrence  for  more  than  100  miles,  thence  South  84°  East 
1574  chains,  along  or  near  the  line  of  45th  degree  of  north 

563 


§    6lO  SURVEYING   AND   BOUNDARIES  564 

latitude;  thence  south  60  miles  and  10  chains;  thence  nearly 
west  3853  chains ;  thence  south  westerly  about  30  miles ; 
thence  in  a  southerly  and  northwesterly  direction  to  Lake 
Ontario;  thence  northeasterly  along  that  lake  to  the  river  St. 
Lawrence.  A  more  particular  description  can  not  be  made  out 
from  the  photographic  copy  of  the  map  of  that  purchase  on 
file  in  the  office  of  the  state  engineer  and  surveyor  at  Albany, 
That  official  will  send  a  photographic  copy  of  such  map  upon 
application  to  any  surveyor.  By  a  reference  to  such  map,  the 
reader  will  realize  the  great  difficulty  of  retracing  the  bound- 
ary lines  of  that  and  other  purchases,  and  of  the  subdivision 
lines  run  at  an  early  date.  As  heretofore  stated,  no  one  sys- 
tem was  followed.  The  topography  of  the  country  had  much 
to  do  with  boundary  lines.  The  work  was  often  erroneously 
executed  and  usually  no  permanent  marks  or  monuments  were 
established.  In  many  cases,  no  field-notes  were  preserved  in 
any  public  office  for  the  guidance  of  subsequent  surveyors. 
While  imperfect  maps  were  generally  made  of  the  survey  of  a 
purchase  or  grant,  yet  frequently  those  maps  were  left  with 
the  owner  of  the  grant  or  purchase  and  there  remains  no  record 
of  what  was  done.  Thus,  the  authorities  are  in  many  cases 
obliged  to  seek  topographical  and  traditional  information  as 
the  only  means  of  retracing  boundary  lines  to  valuable  lands. 

To  the  end  that  the  reader  may  have  some  conception  of  the 
perplexing  problems  encountered  by  surveyors  in  retracing  old 
lines  in  the  Empire  state,  we  quote  herewith  from  a  letter  of 
the  Hon.  Frank  M.  Williams,  state  engineer : 

"In  answer  to  same  (letter  of  inquiry)  would  state  that 
in  Revolutionary  times  and  previously,  there  was  no  plan  or 
design  for  surveying  the  unappropriated  lands  of  the  state. 
They  were  settled  in  a  very  haphazard  manner,  all  sizes  and 
descriptions  of  lots  by  the  early  settlers  and  explorers.  Some 
of  the  larger  tracts  of  land  were  bought  by  a  person  and  his 
associates  and  divided  to  suit  his  convenience,  and  in  many 


565  SURVEY  OF  ORIGINAL  THIRTEEN  STATES  §6ll 

cases,  the  maps  showing  the  subdivisions  of  these  great  tracts, 
were  not  filed  with  the  state. 

"The  military  gratuity  lands  in  central  New  York  were  di- 
vided into  townships  of  about  ten  miles  square  as  nearly  as  the 
nature  of  the  ground  would  permit,  and  these  were  divided 
into  one  hundred  lots  approximately  one  mile  square.  These 
lands  were  allotted  to  the  army  and  navy  for  services  in  the 
Revolutionary  War. 

"In  western  New  York,  the  land  was  formerly  owned  by 
the  Holland  Land  Company.  That  Company  divided  the  land 
into  townships  and  ranges  about  six  miles  square,  and  these 
townships  were  divided  in  some  cases  into  one  hundred  lots, 
and  in  others  a  subdivision  into  sections  of  which  about  ten 
were  covered  in  a  great  lot.  This  plan  was  not  adhered  to  in 
all  cases  and  resulted  in  many  irregular  parcels  of  land. 

"I  enclose  you  a  photograph  of  the  northwestern  part  of 
New  York  State  bought  by  Macomb  and  his  associates,  show- 
ing what  irregular  shaped  parcels  of  land  were  sold  to  him 
and  how  unevenly  the  lots  were  divided." 

We  regret  that  the  limits  of  this  work  do  not  permit  pub- 
lishing a  copy  of  the  Macomb  map. 

In  the  latter  part  of  the  eighteenth  century,  at  about  the  time 
of  the  adoption  of  the  rectangular  system  of  survey  by  the 
federal  government,  we  find  the  original  states  improving  the 
theretofore  system  of  surveys,  simplifying  and  systematizing 
them  to  the  end  that  a  tract  of  land  might  be  described  more 
accurately  and  located  with  reference  to  certain  main  or  prin- 
cipal lines. 

§  611.  The  Holland  Purchase  in  New  York. — As  a  splen- 
did example  of  these  improved  surveys,  under  the  many  sys- 
tems in  use  in  the  several  states,  we  will  briefly  refer  to  the 
survey  of  the  so-called  "Holland  Purchase"  in  western  New 
York.  Like  all  modern  surveys  the  survey  of  this  tract  of 
land  was  made  with  reference  to  two  well  known  main  lines, 


§    6l2  SURVEYING   AND   BOUNDARIES  566 

which  were  first  run  and  to  which  references  are  made 
throughout  the  survey.  The  first  of  these  lines  was  termed  a 
"base  line,"  and  its  use  the  same  as  the  base  lines  under  the 
rectangular  system.  From  such  base  lines  the  townships  were 
numbered  toward  the  north  as  they  were  run  out,  beginning 
with  such  base  line.  This  line  for  the  Holland  Purchase  was 
the  same  as  the  northern  boundary  of  the  state  of  Pennsyl- 
vania. 

The  other  line  to  which  reference  has  been  made,  was 
termed  a  "transit  line."  This,  in  a  way,  corresponds  to  the 
principal  meridian  in  the  rectangular  system.  These  lines 
were  known  in  the  survey  of  the  Holland  Purchase  as  the 
"east  transit  line"  and  the  "west  transit  line."  They  were 
run  due  north  and  south,  and  are  true  meridians.  In  the 
Holland  Purchase,  the  ranges  were  numbered  west  from  the 
east  transit  line.  In  respect  to  numbering  the  towns  and 
ranges,  the  practice  was  similar  to  the  manner  of  numbering 
under  the  new  system. 

This  survey  was  made  under  the  direction  of  Joseph  Ellicott 
as  head  surveyor,  beginning  in  the  year  1797.  He  ran  the 
east  transit  line  in  1798,  and  then  proceeded  to  run  the  town- 
ship and  range  lines.1  We  are  told  this  survey  was  similar  to 
the  one  followed  on  the  Phelps  and  Gorham  Purchase,  a  large 
tract  of  land  in  the  same  state  and  farther  to  the  east. 

§  612.  Townships.— After  the  principal  lines  had  been  run 
as  indicated,  the  surveyors  next  ran  out  the  exterior  lines  of 
the  townships.  The  townships  were,  in  the  main,  six  miles 
square,  as  near  as  could  be  made.  Along  the  exteriors  of  the 
townships  lot  corners  were  established  at  each  three-quarters 
of  a  mile.  It  will  thus  be  seen  that  the  townships  were  sub- 
divided into  sixty-four  lots  or  eight  each  way,  containing  an 
area,  as  near  as  may  be,  of  three  hundred  and  sixty  acres.  As 
is  known,  the  natural  convergence  of  the  meridians  would 

1IHistory  of   Erie  County,   13. 


567  SURVEY  OF  ORIGINAL  THIRTEEN  STATES  §    613 

make  the  townships  a  little  less  than  six  miles  across  the  north 
side  and  the  lots  a  little  less  than  three-quarters  of  a  mile 
along  the  north  side.  The  lots  were  numbered  from  I  to  64, 
beginning  in  the  southeast  corner  of  the  township  with  num- 
ber i  and  running  north  along  the  east  side  to  number  8  in 
the  northeast  corner  thereof:  thence  beginning  with  number 
9,  west  of  number  i  on  the  south  boundary  of  the  township 
and  proceeding  north  to  the  north  boundary  of  the  township 
to  number  16  west  of,  and  adjacent  to  number  8.  Proceed  in 
the  same  manner  with  numbers  17,  25,  33,  41,  49,  and  57 
along  the  south  boundary  of  the  township,  closing  with  num- 
ber 64  in  the  northwest  corner  of  the  township.  The  greater 
part  of  the  Holland  Purchase  was  surveyed  under  this  system 
and,  compared  to  earlier  surveys,  was  simple  and  intelligible. 
The  townships  in  some  of  the  surveys  were  divided  into  16 
sections,  each  of  approximately  one  and  one-half  miles  square. 
This  system,  it  will  be  seen,  would  give  sixteen  sections  to  the 
township.  We  are  indebted  to  the  Hon.  Willis  G.  Clark,  of 
Springville,  Erie  Co.,  N.  Y.  for  much  data  relative  to  the 
Holland  Purchase  survey. 

§  613.  Resurveys  and  subdivisions  of  lots. — The  limits  of 
this  work  will  not  permit  of  a  study  of  the  various  systems 
followed  in  the  survey  of  the  many  purchases  or  grants.  Suf- 
fice it  to  be  said,  however,  that  in  making  subdivision  of  lots 
or  sections,  the  surveyor  should  procure  as  full  notes  of  the 
original  survey  as  is  possible  before  beginning  a  resurvey  or 
a  subdivision  of  a  lot  or  section. 

The  rules  laid  down  in  other  parts  of  this  work  for  a  re- 
tracement  of  original  surveys,  so  far  as  applicable,  will  apply 
equally  to  the  systems  under  consideration  in  this  chapter. 
Single  and  double  proportionate  measurements  will  be  applied 
where  possible  to  the  end  that  corners  and  lines  may  be  re-es- 
tablished at  the  place  where  originally  planted. 


§    614  SURVEYING   AND   BOUNDARIES  568 

§  614.  How  to  secure  information. — In  many  of  the  origin- 
al states  extensive  surveys  are  being  made  at  this  time  to  the 
end  that  more  accurate  information  be  had  as  to  the  bases  of 
the  surveys  of  various  grants.  Bases  are  being  established 
and  different  grants  connected  by  triangulation  or  otherwise 
in  those  states  where  no  particular  system  was  followed.  By 
communicating  with  the  secretary  of  state  of  any  such  state, 
information  can  be  secured  as  to  the  proper  department  to 
whom  to  write  for  notes  of  surveys  and  data  of  old  surveys,  if 
in  existence.  The  local  surveyor  should  secure  all  such  infor- 
mation before  beginning  a  resurvey. 

Should  a  person,  resident  of  any  state,  desire  information 
relative  to  the  different  systems  of  surveys  followed  in  the 
original  states,  he  can  secure  much  valuable  help  by  referring 
to  the  historical  society  collections  of  his  own  state.  The 
particular  system  followed  in  a  given  county  is  frequently  dis- 
cussed in  the  histories  of  that  county  to  which  reference  may 
be  had. 

§  615.  Triangulation  surveys. — As  heretofore  noted,  many 
of  the  original  thirteen  states  are  providing  a  system  of 
triangulation  lines  in  the  different  parts  of  the  state  to  which 
detached  tracts  may  be  tied  for  a  more  perfect  description. 
The  state  of  Massachusetts  has  taken  a  leading  part  in 
triangulation  surveys  in  that  state.  For  information  to  the 
reader  relative  to  the  state  of  Massachusetts,  we  here  quote 
from  a  letter  of  Hon.  William  F.  Williams,  state  engineer  of 
that  state : 

"Replying  to  your  questions  in  their  order,  I  beg  to  state 
to  No.  i  that  the  only  public  lands  that  have  been  surveyed  in 
this  state  are  a  few  detached  tracts  like  the  Province  Lands, 
in  Provincetown,  etc.,  but  these  are  not  of  very  extensive  area, 
and  I  do  not  think  are  what  you  have  in  mind  as  "public 
lands."  I  am  under  the  impression  that  you  mean  surveys 
similar  to  those  made  by  the  federal  government  in  the  western 
states,  covering  all  the  land,  but  nothing  of  that  kind  has  ever 


569  •    SURVEY  OF  ORIGINAL  THIRTEEN  STATES  §   615 

been  done  in  Massachusetts.  A  triangulation  survey  of  the 
state  has  been  made,  also  surveys  for  determining  the 
geographical  location  of  all  the  town  boundaries  and  corners, 
and  a  general  survey  was  made  by  the  United  States  geolog- 
ical survey  covering  the  entire  state  a  number  of  years  ago 
which  resulted  in  their  publishing  fifty-four  sheets  known  as 
the  topographical  survey,  but  that  does  not  show  property 
lines.  These  sheets  have  recently  been  corrected  by  this  de- 
partment and  a  new  edition  issued  showing  the  town  lines,  but 
no  lines  of  individual  or  state  ownership. 

"To  your  second  question  I  should  say  there  is  no  published 
work  describing  the  original  surveys  for  the  reason  already 
stated  that  no  such  survey  has  been  made  although  the  sur- 
veys of  reservations  have  been  mapped  but  I  am  not  sure  that 
any  of  these  maps  are  now  available.  I  do  not  know  that 
any  particular  description  was  given  of  the  method  of  making 
the  survey. 

'To  your  third  question,  I  would  say  that  we  have  no  maps 
of  townships  divided  into  lots  and  sections  similar  to  the  west- 
ern states. 

"In  answer  to  the  fourth  question,  no  original  survey  of 
lands  was  made  by  the  state  before  the  Union  was  formed  or 
since. 

"Some  years  ago  a  law  was  passed  for  registration  of  lands 
where  the  title  was  not  entirely  clear,  by  the  establishment  of 
what  is  known  as  the  land  court.  This  court  has  made  a  rule 
requiring  all  surveys  of  land  for  registration  to  be  connected 
with  some  known  triangulation  point  so  that  the  corners  of 
the  survey  can  be  geographically  calculated.  In  the  course  of 
time  a  considerable  portion  of  the  various  lands  of  private  and 
public  ownership  will  in  this  way  become  connected  with 
triangulation  points  from  which  the  location  of  the  corners  of 
these  lands  can  be  determined  geographically  if  all  the  marks 
are  lost.  But  as  I  have  already  stated,  no  survey,  similar  to 


§    6l6  SURVEYING  AND  BOUNDARIES  570 

the  government  surveys  in  the  west,  has  ever  been  undertaken 
in  this  state." 

§  6 1 6.  New  Hampshire. — The  early  surveys  of  lands  in 
New  Hampshire  are  practically  like  those  of  Massachusetts. 
The  topography  of  the  country  was  the  basis  of  most  of  those 
surveys :  practically  no  records  are  extant,  and  it  is  practically 
impossible  to  retrace  old  lines  with  any  assurance  of  certainty. 
However,  about  the  year  1870,  a  survey  of  the  whole  state 
was  made  by  a  Mr.  Hitchcock,  but  that  we  are  told,  "is  only 
fairly  accurate  locally,  but  for  a  survey  of  the  whole  state  is 
fairly  good."  The  township  lines  of  that  state  are  supposed  to 
be  resurveyed  and  marked  every  seven  years,  and  we  are  told 
that  "this  practice  is  usually  carried  out." 

§  617.  Pennsylvania. — All  of  the  lands  in  the  state  of  Penn- 
sylvania, except  the  small  triangle  bounded  by  Lake  Erie  on 
the  north,  were  granted  to  William  Penn  in  1681,  by  Charles 
II,  king  of  England.  In  the  year  1684,  Penn  began  to  grant 
warrants  and  patents  for  lands  in  his  province  as  "True  and 
absolute  proprietor  and  governor."  This  was  continued  until 
1779,  at  which  time  the  assembly  of  that  state  passed  an  act 
for  "Vesting  the  lands  of  the  proprietaries  of  Pennsylvania  in 
the  commonwealth."  Manors  and  proprietary  tenths  which 
had  been  surveyed  and  returned  prior  to  July  4,  1776,  private 
estates,  etc.,  were  excepted  from  this  act.  The  act  authorized 
the  payment  of  one  hundred  and  thirty  thousand  pounds  to 
the  heirs  of  Thomas  and  Richard  Penn,  "late  proprietaries,  as 
compensation  for  their  lands." 

The  lands  granted  under  Penn  seem  to  have  been  surveyed 
much  like  the  lands  of  the  other  states  of  that  day.  The 
topography  of  the  country  was  largely  responsible  for  the  ir- 
regular tracts  in  many  parts  of  that  state.  However,  the 
state  has  surveyed  all  of  its  lands  patented  since  1779,  and 
has  fairly  accurate  records  thereof,  we  are  informed.  On  the 
whole,  the  surveys  and  records  thereof  in  that  state  appear  to 


571  ,     SURVEY  OF  ORIGINAL  THIRTEEN  STATES  §    62O 

be  in  much  better  shape  than  in  many  other  of  the  older 
states. 

Where  the  boundaries  of  two  tracts  or  grants  overlap,  upon 
a  survey  being  made,  the  courts  have  decided  generally  speak- 
ing, "that  where  any  interference  exists  between  two  surveys, 
the  senior  survey  takes  title  to  the  lands  included  in  the  inter- 
ference."2 

§  618.  General  rules. — The  courts  of  that  state  have  laid 
down  three  general  rules  to  be  followed  by  surveyors  in  re- 
locating an  old  survey. 

First:  The  marks  or  monuments,  natural  or  artificial,  on 
the  ground  are  the  best  evidence  of  the  true  location  thereof. 

Second :  Calls  for  adjoining  tracts  of  lands  as  boundaries 
are  the  next  best  evidence  of  the  true  location. 

Third :  The  courses  and  distances  as  shown  on  the  draft  of 
the  deputy  surveyor  are  the  next  best  evidence  but  the  weakest 
and  the  least  to  be  regarded  is  that  of  distance.3 

§  619.  Monuments  on  the  ground. — By  monuments  on  the 
ground  are  meant  trees,  natural,  or  artificial  monuments 
marked  by  the  deputy  surveyor  at  the  time  he  surveyed  the 
tract  at  the  corners  or  angles  of  the  lines  and  which  monu- 
ments are  called  for  in  the  plat  returned  by  the  surveyor.  Also 
marked  trees  along  the  line.4 

§  620.  Adjoining  tracts  or  adjoiners. — Deputy  surveyors 
were  not  required  to  resurvey  and  remark  a  line,  the  common 
boundary  between  the  tract  being  surveyed  and  another  tract 
already  surveyed.  In  fact,  the  courts  held  it  improper  to  make 
such  resurvey  and  remarking  as  it  tended  to  confusion.  In 
that  case,  the  deputy  would  note  the  adjoining  survey  but 
would  not  plant  any  monuments.  Such  a  survey  is  called  a 

2VI  Journal  of  the  Engineers'  4VI  Journal  of  the  Engineers' 
Society  of  Pennsylvania,  172.  Society  of  Pennsylvania,  172. 

3VI    Journal    of    the    Engineers' 
Society  of  Pennsylvania,    172. 


§621  SURVEYING  AND  BOUNDARIES  572 

"chamber  survey,"  and  the  only  way  it  can  be  relocated  is  to 
locate  the  adjoining  survey.5 

In  all  these  resurveys,  it  is  an  invariable  rule  that  lines  must 
go  to  known  monuments  or  corners,  even  though  the  distances 
be  greater  or  less  than  called  for  in  the  original  survey.6 

§  621.  Block  surveys.— And  we  find  in  the  rules  that 
"Where  lands  are  surveyed  together  in  a  block,  which  hereto- 
fore has  been  defined,  the  law  is,  that  the  entire  block  must 
be  surveyed  as  one  tract  and  that  any  monument  of  the  block 
is  also  a  monument  for  every  tract  of  land  within  the  block."7 
All  Pennsylvania  surveyors  should  possess  all  of  the  numbers 
of  the  "Journal  of  the  Engineers'  Society  of  Pennsylvania." 
The  records  of  surveys  in  that  state  are  remarkably  complete 
considering  the  circumstances. 

§  622.  Connecticut. — The  same  haphazard  system  of  sur- 
veys, disconnected  and  full  of  errors,  and  practically  without 
records  or  data  for  the  future  guidance  of  surveyors,  as  pre- 
vailed in  other  New  England  states,  was  followed  in  Connecti- 
cut. Original  lines  are  poorly  marked.  Little  has  been  done 
in  the  way  of  running  triangulation  lines  and  it  is  practically 
impossible  for  the  surveyor  to  retrace  the  original  lines  with 
any  degree  of  satisfaction.  The  state  has  no  surveyor  general 
or  land  department  and  is  generally  regarded  as  away  behind 
the  sister  states  in  a  general  survey  of  the  state,  although  this 
was  urged  by  its  last  surveyor-general  in  1874. 

§  623.  Maryland. — Practically  all  of  the  lands  of  the  pres- 
ent state  of  Maryland  were  granted  by  Charles  I  of  England 
to  Lord  Baltimore  in  1631.  As  was  the  practice  in  other 
states,  he  sold  parts  of  these  lands  to  others  and  surveys  of 
the  granted  tracts  were  made  much  the  same  as  in  other  states 

5VI  Journal  of  the  Engineers'  7VI  Journal  of  the  Engineers' 
Society  of  Pennsylvania,  173-  Society  of  Pennsylvania,  173. 

6VI    Journal    of    the    Engineers' 
Society  of  Pennsylvania,   173. 


573  SURVEY  OF  ORIGINAL  THIRTEEN  STATES  §    624 

and  without  any  regard  to  any  system.  The  surveys  were 
in  many  instances  poorly  executed,  were  full  of  errors,  and  no 
records  were  preserved  for  future  reference.  As  a  result, 
much  confusion  exists  as  to  original  lines.  However,  the 
commissioner  of  the  land  office  of  that  state  has  made  and 
sent  out  to  surveyors  of  that  state  a  complete  set  of  rules  rela- 
tive to  the  surveys  of  original  lines.  These  rules  should  be 
in  the  hands  of  every  surveyor  of  that  state.8 

§  624.  Other  states. — Of  the  other  thirteen  original  states, 
it  may  be  said  the  same  lack  of  system  is  found  to  exist.  The 
records  of  early  surveys  are  very  imperfect  and  it  is  practically 
impossible  to  retrace  original  lines  in  many  instances  with  any 
degree  of  satisfaction.  The  boundaries  of  different  tracts  fre- 
quently overlap  or  do  not  come  together  and  the  surveyor  who 
is  called  upon  to  retrace  old  lines  "has  troubles  enough  of  his 
own."  It  will  be  evident  to  the  skilled  surveyor  that  the  best 
that  can  be  done  in  most  cases  is  to  compromise  between  dif- 
ferent claimants  under  the  careful  guidance  of  an  honest  sur- 
veyor. The  task  of  making  a  general  survey  of  the  state  and 
of  running  main  lines  connecting  the  many  grants  by  tie  lines 
is  so  great  that  many  of  the  states  shrink  from  the  burden.  It 
is,  however,  advisable  that  this  be  done  at  an  early  date. 

8Biennial  Report  of  the  Com-  Maryland  for  the  Years  1915-1917- 
missioner  of  the  Land  Office  of  and  1917-1919. 


CHAPTER  XXVII 


THE  RECTANGULAR  SYSTEM  IN  THE  DOMINION  OF  CANADA 


Sec. 

625.  Generally. 

626.  Road  allowances. 

627.  Township   boundaries. 

628.  Base  lines. 

629.  Correction   lines. 

630.  Errors. 

631.  Surplus   or  deficiency. 

632.  Irregular  quarter-sections. 

633.  Monuments. 

634.  Corners  on  correction  lines. 

635.  Legal  subdivisions. 

636.  Special  instructions. 

637.  Plans  of  surveys. 

638.  Correction  of  survey. 

639.  Resurvey  on  petition. 


Sec. 

640.  Subdivision  of  sections. 

641.  Original  boundary  lines  con- 

trolling. 

642.  Re-establishment  of  lost  cor- 

ners. 

643.  Road  allowances  to  be  taken 

into  account. 

644.  Plans  of  surveys  to  be  trans- 

mitted  to   provinces. 

645.  Penalties    for   molesting   sur- 

veyor or  destroying  monu- 
ments. 

646.  Townships — Surplus — D  e  f  i- 

ciency. 

647.  Subdivision   of  townships. 


§  625.  Generally. — Canada  has  provided  for  a  survey  of 
all  dominion  lands  in  the  western  provinces  by  the  rectangular 
system.  The  system  as  so  inaugurated  differs  considerably 
from  our  own  but  was  evidently  based  thereon.  In  this  chap- 
ter, we  shall  briefly  touch  on  the  provisions  of  that  system  as 
now  in  use  in  that  country.  No  attempt  will  be  made  to  be 
exhaustive  but  the  chapter  will  be  an  abstract  or  review  of 
the  more  important  provisions  of  the  Canadian  act. 

These  surveys  provide  for  the  survey  of  dominion  lands 
and  may  be  found  in  the  "Dominion  Land  Surveys  Act,"  as 
amended  March  17,  1908.  The  act  provides  that  the  dominion 
lands  shall  be  laid  out  into  quadrilateral  townships  of  six 
miles  square,  each  containing  thirty-six  sections  "of  as  nearly 


574 


575  CANADIAN   SYSTEM  §    627 

one  mile  square  as  the  convergence  of  the  meridians  permit." 
There  shall  be  such  road  allowances  as  the  governor  in  coun- 
cil prescribes.1 

Under  this  act,  the  dominion  lands  in  the  provinces  of 
Manitoba,  Saskatchewan,  Alberta,  British  Columbia,  and  the 
Northwest  territories  have  been  or  are  being  surveyed.  The 
act  provides  that  section  one  shall  be  placed  in  the  southeast 
corner  of  the  township,  and  continue  with  two,  three,  four, 
five  and  six  along  the  south  boundary  of  the  township.  Then 
with  section  seven  north  of  section  six  run  easterly  to  section 
twelve  until  the  east  border  of  the  township  is  reached.  Thus 
continue  back  and  forth  to  number  thirty-six  in  the  northeast 
corner  of  the  township.2 

§  626.  Road  allowances — There  is  a  unique  provision  in 
the  act  pertaining  to  road  allowances  and  one  to  be  com- 
mended. It  is  provided  that  there  shall  be  a  road  allowance 
along  all  range  lines.  Likewise,  there  shall  be  a  road  allow- 
ance along  alternate  township  lines.  This  latter  provision  pro- 
vides that  there  shall  be  such  allowance  along  the  south  bound- 
ary of  the  townships ;  another  allowance  at  two,  four  and  six 
mile  points.  These  allowances  are  exclusive  of  the  sections 
and  no  part  thereof  is  taken  from  the  area  of  the  section. 
These  allowances  are  generally  100  links  in  width,  though 
such  width  varies  along  correction  lines.  Fig.  114.  In  some 
of  the  systems  the  road  allowances  are  1.50  chains.3 

§  627.  Township  boundaries. — The  act  provides  that  the 
lines  bounding  townships  on  the  east  and  west  sides  shall  be 
meridians;  and  those  on  the  north  and  south  sides  shall  be 
"chords  to  parallels  of  latitude."4  The  townships  are  num- 
bered in  regular  order  northerly  from  the  base  line  which 

1The  citations  in  this  chapter  will      will  abbreviate  the  title  to,  "Survey 
be  to  pages  in  the  "Manual  of  In-      of  Dominion  Lands." 
structions   for   the  Survey  of  Do-          2Survey  of  Dominion  Lands,  15. 
minion  Lands,"  issued  in  1918.    We          3Survey  of  Dominion  Lands,  44. 

4Survey  of  Dominion  Lands,  15. 


§  627 


SURVEYING   AND   BOUNDARIES 


576 


coincides  with  the  international  boundary  or  49th  parallel  of 
latitude.  The  ranges  in  Manitoba  are  numbered  east  and 
west  from  a  certain  meridian  called  the  principal  meridian, 
which  begins  at  the  international  boundary  "about  ten  miles 


W 


N 


31 

32 

33 

34 

35 

36 

E 

30 

29 

28 

27 

26 

25 

19 

20 

21 

22 

23 

24 

18 

17 

16 

15 

14 

13 

7 

8 

9 

1 

II 

IZ 

6 

5 

4 

I- 

2 

1 

s 

Fiq.114 

west  of  Pembina."    Other  meridians  styled  the  2nd,  3rd,  4th, 
5th,  etc.,  have  been  established  in  other  provinces.5 

The  townships  are  given  their  prescribed  width  on  the  base 
line.  The  meridians  between  townships  are  drawn  across 
such  bases,  north  and  south  to  the  depth  of  two  townships,  i. 
e.,  to  the  correction  lines.6 


5Survey  of  Dominion  Lands,  15.     6Survey  of  Dominion  Lands,  16. 


577  CANADIAN   SYSTEM  §    63! 

§  628.  Base  lines. — Each  survey  has  a  base  line  which  is 
run  with  great  care  astronomically  and  at  right  angles  to  the 
principal  meridian.  The  principal  meridian  and  the  base  line 
are  the  initial  points  of  the  survey.  The  international  bound- 
ary is  made  the  first  base  line;  the  second  base  line  is  between 
townships  four  and  five;  the  third  between  townships  eight 
and  nine;  the  fourth,  between  townships  twelve  and  thirteen, 
and  so  on  northerly.7  With  respect  to  base  lines,  the  Canadian 
surveys  differ  materially  from  our  own. 

§  629.  Correction  lines. — Correction  lines  are  established 
on  lines  running  east  and  west  between  townships  and  midway 
between  the  base  lines.  They  are  the  lines  between  townships 
2  and  3;  between  townships  6  and  7;  and  townships  10  and 
n,  etc.8  The  act  also  provides  that  each  section  shall  be  di- 
vided into  four  quarters  of  one  hundred  and  sixty  acres  "more 
or  less."  These  correction  lines  are  run  with  the  same  degree 
of  care  as  are  the  base  lines.  Corners  are  planted  on  all  such 
lines  40  chains  apart.  Allowances  for  convergence  are  made 
on  the  correction  lines  as  in  the  United  States.9 

§  630.  Errors. — The  north  and  south  errors  in  closing  on 
the  correction  lines  are  thrown  on  the  quarter-sections  on  both 
sides  of  the  correction  lines,  except  in  the  case  of  the  north 
and  south  error  in  those  townships  between  the  first  and 
second  base  lines,  which  error  is  to  be  left  in  the  quarter-sec- 
tions adjoining  the  first  base  line.10 

§  631.  Surplus  or  deficiency. — The  east  and  west  deficiency 
or  surplus  of  a  township  is  thrown  into  the  ranges  of  quarter  - 
sections  adjoining  the  west  boundary  of  the  township.11  This 
provision  is  similar  to  the  American  plan,  but  differs  from 
it  widely  in  the  manner  of  its  execution. 

7Survey  of  Dominion  Lands,  16.  10Survey  of  Dominion  Lands,  17. 
8Survey  of  Dominion  Lands,  16.  "Survey  of  Dominion  Lands,  17. 
9Survey  of  Dominion  Lands,  16. 


§   632  SURVEYING  AND  BOUNDARIES  578 

§  632.  Irregular  quarter-sections.— All  irregular  quarter- 
sections  or  other  parcels  of  land  are  returned  by  the  surveyor 
at  their  actual  contents.  All  road  allowances  passing  through 
sections  should  not  be  included  in  such  contents.12 

§  633.  Monuments.— A  single  row  of  monuments  only  to 
indicate  the  township,  section  and  quarter-section  corners  shall 
be  placed  on  any  survey  line.  On  the  north  and  south  lines 
the  monuments  shall  be  placed  on  the  west  limits  of  the  road 
allowance;  and  on  the  east  and  west  lines,  they  shall  be  placed 
in  the  south  limits  of  the  road  allowance.  These  corners  shall 
fix  the  boundary  corner  between  the  adjoining  townships,  sec- 
tions or  quarter-sections,  on  the  opposite  side  of  the  road.13 

§  634.  Corners  on  correction  lines. — Township,  section, 
and  quarter-section  corners  on  correction  lines  are  placed  and 
marked  independently  for  the  townships  on  each  side.  When 
a  road  allowance  is  laid  out  along  such  line  the  monuments 
shall  be  placed  in  the  limits  of  such  road  allowance  and  adja- 
cent to  the  lands  they  are  intended  to  define.14 

§  635.  Legal  subdivisions. — "To  facilitate  the  description 
for  letters  patent  of  less  than  a  quarter-section,"  say  the  in- 
structions, "every  section  shall  be  taken  to  be  divided  into 
quarter-quarter  sections,  each  of  forty  acres  more  or  less, 
which  shall  be  styled  legal  subdivisions,  and  shall  be  numbered 
as  shown,"  in  Fig.  H5.15 

§  636.  Special  instructions. — Notwithstanding  anything  in 
the  act,  the  minister  may  direct  that  the  lands  bordering  on 
any  river,  lake,  bayou,  water  course,  or  public  road,  be  sur- 
veyed and  divided  into  lots  of  any  frontage  or  depth  in  such 
manner  and  with  such  roads  as  appear  desirable;  that  the 
lands  may  be  surveyed  out  into  town  or  village  lots  with  such 
streets  and  lots  as  may  be  necessary ;  that  roads  sixty-six  feet 
in  width  may  be  laid  out  where  desirable ;  that  lands  in  Yukon 
Territory,  and  parts  of  Alberta,  British  Columbia  and  Saskatche- 

12Survey  of  Dominion  Lands,  17.          14Survey  of  Dominion  Lands,  17. 
13Survey  of  Dominion  Lands,  17.          ^Survey  of-. Dominion  Lands,  18. 


579 


CANADIAN  SYSTEM 


636 


wan,  and  the  Northwest  Territory,  be  surveyed  and  laid  out 
into  such  lots  as  may  seem  advisable;  that  lands  in  mountain- 
ous parts  of  the  country  may  be  laid  out  into  townships,  sec- 
tions, etc.,  and  located  astronomically  or  by  triangulation. 

N 


W 


13 


H- 


II 


10 
.Section 


15 


16 


6 


Fiq.115 


These  provisions  leave  to  the  minister  a  large  latitude  in  special 
instructions  in  certain  cases.16  It  will  be  remembered  that  the 
United  States  act  has  a  similar  provision. 

16Survey  of  Dominion  Lands,  18. 


§    637  SURVEYING  AND  BOUNDARIES  580 

§  637.  Plans  of  surveys. — Plans  of  surveys  are  made  and 
filed  with  the  department  of  the  interior.  Survey  deemed 
complete  when  the  official  plans  have  been  confirmed.  If 
the  plan  is  erroneous  or  fraudulent,  it  may  be  corrected.  These 
plans  are  platted  from  the  field-notes  under  the  direction  of  the 
surveyor-general;  they  show  the  direction  and  length  of  the 
boundaries;  the  area,  the  kind  and  position  of  monuments. 
The  corrected  plan  referred  to  herein  shall  take  the  place  of 
the  old  plan  but  no  vested  rights  acquired  under  the  old  plan 
shall  be  disturbed.17 

§  638.  Correction  of  survey. — Ample  instructions  are  given 
for  the  correction  of  fraudulent  or  erroneous  surveys.  Where 
a  monument  is  not  at  the  place  where  it  should  have  been 
planted,  the  minister  may  order  that  the  monument  be  removed 
and  another  planted  at  the  proper  place ;  but  no  monument  de- 
fining the  boundaries  of  land  for  which  letters  patent  have 
issued  shall  be  displaced  without  the  consent  in  writing  of  the 
owner  thereof.  The  same  provision  prevails  as  to  home- 
steaders or  to  those  holding  vested  interests  under  lease  or 
land  contract.  But  if  the  error  is  five  chains  or  more  it  may 
be  corrected  by  the  minister  without  the  consent  of  the  parties. 
If  improvements  have  been  made  on  the  land  and  are  thus 
acquired  by  another  such  other  shall  pay  therefor.18 

§  639.  Resurvey  on  petition.— A  resurvey  will  be  ordered 
on  petition  of  owners  of  lands,  representing  that  a  part  or  all 
of  the  original  monuments  have  disappeared  or  can  not  be 
found.  Before  such  resurvey,  notice  thereof  must  be  given 
in  the  Canada  Gazette.  Any  person  having  a  knowledge  of 
the  location  of  the  original  monument  shall  give  notice  thereof 
to  the  minister  and  his  testimony  will  be  taken.  Other  testi- 
mony will  also  be  taken  as  to  location  of  such  corner  and 
thereafter  the  corner  shall  be  re-established.  This  shall  be 
the  true  corner  even  though  the  original  monument  should 

"Survey  of  Dominion  Lands,  19.          18Survey  of  Dominion  Lands,  20. 


581  -v  CANADIAN  SYSTEM  §    64! 

thereafter  be  found.  All  resurveys  shall  have  the  effect  of  the 
original  survey  and  shall  take  the  place  of  such  survey.19 

§  640.  Subdivision  of  sections. — A  section  line  shall  be  es- 
tablished by  running  a  straight  line  between  the  opposite 
original  section  corners,  giving  the  quarter-sections  involved 
an  equal  breadth.  In  laying  out  a  half-section  or  a  quarter- 
section,  the  surveyor  shall  connect  the  opposite  quarter-sec- 
tion corners  by  a  straight  line.  Where  any  such  quarter-sec- 
tion corner  has  not  been  marked  by  a  monument  in  the  original 
survey,  "then  such  corner  shall  be  established  by  giving  to 
each  half-section  its  proportionate  share  of  such  limit  accord- 
ing to  the  official  plan  of  the  township,  and  the  half-sections 
shall  then  be  laid  out  by  connecting  the  corner  so  established 
to  the  opposite  corner."  In  laying  out  other  subdivisions,  the 
surveyor  shall  "give  to  every  such  subdivision  its  proportionate 
share  of  the  frontage  and  interior  breadth,  according  to  the 
official  plan  of  the  survey,  and  connect  the  resulting  terminal 
points  by  a  straight  line." 

The  lines  so  run  on  the  ground  shall  in  the  respective  cases, 
"be  the  true  lines  or  limits  of  such  section,  half-section,  quar- 
ter-section, legal  or  authorized  subdivision,  whether  they  cor- 
respond or  do  not  correspond  with  the  area  expressed"  in 
the  plans  or  patents  of  such  lands.20 

§  641.  Original  boundary  lines  controlling. — All  original 
boundary  lines  run,  shall,  after  "confirmation  of  the  survey 
or  resurvey  by  the  surveyor-general,"  be  the  true  boundaries. 
Every  division  shall  consist  of  the  whole  width  included  be- 
tween the  monuments  making  the  boundaries  and  "no  more  or 
less."  All  road  allowances  laid  out  under  the  act  shall  be 
"public  highways  and  commons."  The  boundary  lines  estab- 
lished under  the  act  shall  be  the  true  boundaries  of  such  al- 
lowances. In  making  surveys  of  such  highways  surveyors 

19Survey  of  Dominion  Lands,  21-  20Survey  of  Dominion  Lands,  22- 
22.  23. 


§    642  SURVEYING  AND  BOUNDARIES  582 

shall  follow  the  same  rules  and  regulations  as  for  the  survey 
of  townships,  as  far  as  such  rules  and  regulations  are  appli- 
cable.21 

§  642.  Re-establishment  of  lost  corners. — Whenever  a 
dominion  surveyor  is  required  to  re-establish  a  lost  corner, 
"he  shall  obtain  the  best  evidence  that  the  nature  of  the  case 
admits  of,  respecting  such  monument;  but  if  its  position  can 
not  be  satisfactorily  so  ascertained,  he  shall  proceed  as  follows : 

"a — If  the  lost  monument  is  that  defining  a  township  cor- 
ner, he  shall  report  the  circumstances  of  the  case  to  the  sur- 
veyor-general, who  shall  instruct  him  how  to  proceed. 

"b — If  the  lost  monument  is  on  one  of  the  outlines  of  a 
township,  or  on  one  of  the  interior  meridian  section  lines  of  a 
township,  he  shall  connect  by  a  straight  line  the  nearest  sec- 
tion or  quarter-section  corners  found  on  such  outline  or  such 
interior  meridian  section  line,  and  divide  such  straight  line 
into  such  number  of  quarter-sections  as  it  contained  in  the 
original  survey,  giving  to  each  a  breadth  proportional  to  the 
breadth  shown  on  the  official  plan  of  the  township. 

"c — If  the  lost  monument  is  on  the  outline  of  a  township 
and  all  the  monuments  between  it  and  the  corner  of  the  town- 
ship, together  with  the  monuments  defining  the  said  corner, 
are  also  lost,  the  township  corner  shall  be  re-established  as 
provided  in  paragraph  (a),  previously  to  re-establishing  the 
outline  of  the  township; 

"d — When  the  lost  corner  is  that  of  a  quarter-section  on  a 
section  line  running  east  and  west  in  the  interior  of  a  town- 
ship, the  surveyor  shall  connect  by  a  straight  line  the  opposite 
section  corners  on  the  meridian  boundaries  of  the  section,  and 
give  to  each  quarter-section  a  breadth  proportional  to  the 
breadth  shown  on  the  official  plan  of  the  township ; 

"e — When  a  corner  on  either  of  the  meridian  boundaries  of 

21Survey  of  Dominion  Lands,  23- 
24-25. 


583  v  CANADIAN  SYSTEM  §    645 

the  section  is  also  lost,  such  meridian  shall  be  re-established 
previously  to  re-establishing  the  east  and  west  line/'22 

§  643.  Road  allowances  to  be  taken  into  account. — "When- 
ever a  surveyor  places  a  monument,  as  aforesaid,  to  re-establish 
a  lost  corner,  he  shall  duly  take  into  account  any  allowance  for 
a  road  or  roads ;  and  the  corner  or  division  or  limit  so  estab- 
lished, shall  be  the  true  corner,  or  division  or  limit  of  such 
township,  section  or  quarter-section."  Nevertheless  surveys 
and  resurveys  in  the  dominion  may  be  made  on  the  order  of 
the  minister,  in  such  manner,  not  inconsistent  with  the  act,  as 
may  be  directed.23 

§  644.  Plans  of  surveys  to  be  transmitted  to  provinces. — 
The  minister  shall  cause  to  be  transmitted  as  soon  as  may  be 
after  a  survey  is  completed,  complete  plans  thereof  to  each 
registration  district  in  the  provinces  of  Manitoba,  Saskatche- 
wan, Alberta,  and  British  Columbia  and  in  the  Northwest 
Territories  and  in  the  Yukon  Territory.  Amendments  shall 
also  be  transmitted  to  the  respective  districts.24  Copies  of  any 
official  plan  shall  be  competent  evidence  in  all  cases,  when  at- 
tested under  the  signature  of  the  minister  or  of  the  surveyor- 
general.  Lithographed  copies  shall  also  be  received  and  shall 
be  prima  facie  evidence  of  the  original  and  of  the  contents 
thereof.25 

§  645.  Penalties  for  molesting  surveyor  or  destroying 
monuments. — It  is  an  indictable  offense  to  interfere  or  molest 
any  dominion  land  surveyor;  also  to  knowingly  or  willfully 
destroy  monuments;  also  to  willfully  deface  any  mark  of  the 
limit  of  a  boundary;  also  to  be  in  possession  of  monuments, 
not  for  any  lawful  purpose,  and  upon  conviction,  heavy  penal- 
ties are  affixed.26  But  a  dominion  surveyor  may  remove  a 
monument  under  the  act  and  replace  it  as  provided  therein. 

22Survey  of  Dominion  Lands,  25-  25Survey  of  Dominion  Lands,  26- 

26.  27. 

23Survey  of  Dominion  Lands,  26.  26Survey  of  Dominion  Lands,  28. 
a*Survey  of  Dominion  Lands,  26. 


§   646  SURVEYING  AND  BOUNDARIES  584 

§  646.  Townships — Surplus — Deficiency. — In  the  third 
system  of  survey,  the  townships  measure  from  south  to  north 
483  chains  and  from  east  to  west  486  chains.27  Fig.  114. 
This,  it  must  be  remembered,  is  subject  to  the  surplus  or  de- 
ficiency caused  by  the  convergence  of  the  meridians.  That 
excess  or  deficiency  is  distributed  equally  among  all  quarter- 
sections  involved.  The  lines  bounding  sections  on  the  east  and 
west  are  true  meridians,  or  theoretically  so  at  least.  The  bound- 
ary lines  on  the  north  and  south  sides  of  a  section  are  parallel 
to  the  north  and  south  boundaries  of  a  township.28  This  is 
not  the  case  in  the  first  system  of  survey.29 

Before  subdividing  a  tract  of  country  into  sections,  the  same 
is  surveyed  into  townships.  This  is  done  by  projecting  the 
base  lines  from  the  initial  meridians  and  the  control  meridians 
for  the  base  lines  to  the  correction  lines.30 

Generally  a  single  row  of  monuments  only  shall  be  placed 
on  the  survey  line.  On  the  north  and  south  lines  such  monu- 
ments are  placed  in  the  west  limit  of  the  road  allowances. 
On  the  east  and  west  lines  such  monuments  are  placed  in  the 
south  limits  of  road  allowances.  These  monuments  fix  the 
position  of  the  boundary  corners  between  the  adjoining  town- 
ships and  sections  or  quarter-sections  on  the  opposite  side  of 
the  road  allowance.31  However,  on  all  correction  lines,  monu- 
ments shall,  in  all  cases,  be  placed  and  marked  independently 
for  the  townships  on  each  side.  And  where  a  road  allowance 
is  placed  along  a  correction  line,  such  monuments  shall  mark 
the  limits  of  such  allowance.32 

Fig.  116  represents  a  road  allowance  along  a  correction  line, 
of  course,  greatly  exaggerated  in  order  to  illustrate  the  point 
desired.  Line  GH  represents  the  north  boundary  of  a  town- 
ship lying  south  along  which  line  monuments  were  placed  and 

"Survey  of  Dominion  Lands,  46.  30Survey  of  Dominion  Lands,  43. 
28Survey  of  Dominion  Lands,  46.  31  Survey  of  Dominion  Lands,  17. 
29Survey  of  Dominion  Lands,  74.  32Survey  of  Dominion  Lands,  17. 


CANADIAN  SYSTEM 


§    647 


marked  independently  of  those  on  the  line  EK.  But  still  the 
central  meridian  from  the  south,  AM,  is  perpendicular  to  GH, 
and  that  from  the  north,  BN  is  perpendicular  to  EK.  OP  is 
made  100  links:  BC  would  be  100  plus  S,  and  AD  would  be 


F       G 


Sec- 33 


Sec  34 


Rq  116 


100  minus  S.  These  are  fixed  by  computation  on  the  basis 
of  the  length  of  AC.  The  angle  between  the  two  control 
meridians  is  equal  to  the  convergence  and  is  taken  from  as- 
tronomical tables.33  The  control  meridian,  AM,  is  run  south 
from  the  northeast  corner  of  section  33.3* 

§  647.     Subdivision  of  townships. — The  method  of  the  sub- 
division of  a  township  in  the  third  system  of  survey  in  the 

33Survey  of  Dominion  Lands,  80-         34Survey  of  Dominion  Lands,  78. 
81. 


§  647 


SURVEYING  AND   BOUNDARIES 


586 


Dominion  of  Canada  differs  radically  from  the  method  pur- 
sued in  the  United  States.  A  control  meridian  is  run  due 
south  from  the  northeast  corner  of  section  33  in  the  township 
and  a  control  chord  is  run  due  east  from  the  northwest  corner 
of  section  18  of  the  same  township.  The  two  lines  intersect 

§ 

1 


Control 


16 


Chord 


Townshi 


3*°   System 


3 

Fiq.117 

at  the  northeast  corner  of  section  16.  Theoretically,  the 
boundaries  of  the  sections  in  township  125  of  the  third  system 
would  be  shown  as  in  Fig.  117.  The  east  and  west  lines  would 


587  CANADIAN  SYSTEM  §    647 

be  parallels.  The  lines  bounding  the  sections  on  the  east  and 
west  sides  of  the  sections  would  run  on  true  north  and  south 
lines.  The  figure  is  greatly  exaggerated  to  show  the  conver- 
gence of  the  meridians.  The  east  and  west  lines  are  run  at 
right  angles  to  the  control  meridian.  The  north  and  south 
lines  are  run  due  north  and  south  from  the  control  chord.35 

85Survey  of  Dominion  Lands,  79. 


INDEX 


{References  are  to  Sections.] 

ABANDONMENT, 

failure  to  open  highway,  605. 
failure  to  repair  highway,  605. 
non-user  not  always,  606. 
of  highway,  604. 
statutes  as  to,  608. 
street  in  village,  606. 

ACCESSORIES, 

are  monuments,  373. 
character  of,  375. 
eliminations  of,  375. 
entered  in  notes,  375. 
highest  degree  of  evidence,  376. 
search  for,  374,  375. 

ACCRETION, 

applies  to  all  waters,  286. 

between  island  and  shore,  317. 

consider  all  circumstances  in  division  of,  271. 

defined,  243,  266. 

determined  by  facts,  292. 

determined  by  laws  of  state,  324. 

division  of  in  different  states,  324. 

division  of  in  long  lake,  255. 

division  of  in  round  lake,  255. 

division  of  on  curved  shore,  269,  325. 

division  of  on  lakes,  276. 

division  of,  rules  for,  243,  248,  254,  268,  269,  271,  282. 

division  of  where  shore  straight,  268. 

dock  privileges  and,  302. 

doctrine  applies  to  states  and  nations,  286. 

does  not  apply  to  movable  island,  296. 

dry  bed  of  lake,  322. 

general  trend  of  shore  in  dividing,  300. 

highway  may  modify  rights  to,  288. 

how  determined,  251,  310. 

imperceptible  change,  296. 

in  complex  cases,  305. 

in  round  lake,  301. 

land  between  meander  line  and  water,  292. 

loss  by,  291. 

meander  line  not  considered,  255. 

not  a  public  right,  24'4. 

589 


59°  INDEX 

ACCRETION— Continued 

on  banks  of  small  lakes,  326. 

on  concave  shore  line,  269. 

on  convex  shore  line,  269. 

on  curved  shores,  300. 

on  dedicated  street,  211. 

on  irregular  shores,  307. 

on  lakes,  311. 

on  lake  shore,  311. 

on  stream,  division  of,  316,  321. 

on  streams,  311. 

on  waters  generally,  323. 

ownership  of,  309. 

partition  of,  248,  249. 

right  of  may  rest  on  lands  of  another,  249. 

right  to  an  island,  312. 

right  to,  condition  at  date  of  grant,  320. 

riparian  proprietors,  owners  of,  243,  244. 

rules  for  dividing,  300,  305. 

state  law  determines  right  to,  287. 

title  by,  may  be  lost,  266. 

title  to  generally  in  individual,  323. 

to  island,  296. 

transfer  of  rights  to  water,  304. 

transfer  of  shore  carries,  285. 

transfer  of  title  to,  285. 

vendee  acquires  property  in,  288. 

washing  away  and  refilling,  249. 

water  line  the  boundary,  58,  243,  285. 

water  passing  diagonally  across  street,  288. 

where  highway  intervenes,  311. 

where  shore  straight,  317. 

ADVERSE  POSSESSION, 
acts  of,  586. 

against  whom  title  may  be  acquired  by,  589. 
agent,  593. 

agreement  as  to  boundary,  563,  564,  565. 
a  question  of  fact,  585. 
as  relates  to  boundaries,  585. 
by  color  of  title,  590. 
by  relatial  or  filial  relationship,  592. 
disagreement  as  to  line,  572. 
disclaimer  of,  592. 
how  shown,  590. 
importance  of  to  surveyor,  585. 
inferences  from  acts  of  party  as  to,  588. 
kind  of  possession,  586,  594,  595. 
mortgagee,  593. 
must  be  hostile,  592. 
must  be  visible,  591. 
must  have  actual  possession,  586,  590. 
not  against  state,  589. 

occupying  statutory  period  to  line,  567,  568. 
occupying  to  boundary  line,  593. 
owner  to  keep  "banner  unfurled,"  588. 
possession  of  guardian,  593. 


INDEX  591 

ADVERSE  POSSESSION — Continued. 
possessor  keep  "flag  flying,"  588. 
practical  location  of  line,  569. 
remaining  in  possession  after  grant  not,  593. 
state  may  get  title  by,  589. 
tacking  possessions,  596. 
title  once  acquired  by,  not  lost,  586. 
under  color  of  title,  567. 
what  is,  585,  586,  587,  588,  589,  590,  591,  592. 
what  is  hostile  a  question  of  fact,  592. 
who  may  acquire  title  by,  589. 
works  a  disseisin,  586. 

ALLUVION, 

applies  to  all  bodies  of  water,  286. 
applies  to  states  and  nations,  286. 
defined,  56,  243. 
division  of,  2-43,  248. 
highway  may  modify  rights  in,  288. 
how  determined,  251. 
loss  by,  291. 

riparian  proprietors  owners  of,  244. 
rule  of  United  States  courts  as  to,  286. 
rules  for  division  of,  243,  248,  254. 
shape  of  body  of  water  considered,  243. 
state  law  determines  rights  to,  287. 
transfer  of  shore  carries,  285. 
transfer  of  title  of,  285. 
washing  away  and  refilling,  249. 
water  must  form  boundary  to,  285. 

ALTERATION, 

of  highway,  602. 

slight  deviation  not,  602. 

what  and  effect,  602. 

ANCIENT  FENCES, 

as  evidence  of  original  lines,  585. 
monuments,  if  found,  govern,  585. 
presumption  as  to,  585. 

AUXILIARY  BASE, 

impassable  objects  south  boundary  of  township,  116. 

AVULSION, 

boundary  remains  stationary  in,  296. 

does  not  change  fee,  246. 

how  determined,  251. 

not  imperceptible,  296. 

sudden  change,  244,  246. 

what,  310. 

BANKS, 

defined,  298. 

BANK  OF  STREAM, 
defined,  198. 


592  INDEX 

BANK  OF  STREAM— Conttnwed. 

left  bank,  on  left  side  going  down,  198. 
right  bank,  on  right  side  going  down,  198. 

BASE  LINE, 

care  in  running,  92. 

defined,  2. 

entire  survey  based  on,  92. 

first  one,  336. 

how  established,  2,  23,  92. 

in  Canada,  628. 

list  of,  97. 

number,  2. 

BATTURE, 

belongs  to  riparian  owner,  289,  290. 

defined,  290. 

differs  from  accretion,  290. 

how  divided,  290. 

BAYOU, 

land  between  river  and,  209. 
meandered,  202,  209. 

BEARING  TREES, 

marking  corner,  217,  219. 
on  quarter  corners,  228. 

BEDS, 

defined,  298. 

division  of,  determined  regardless  of  shore  boundaries,  326. 

equity  sought  in  dividing,  301. 

in  round  lake,  how  divided,  301. 

of  long  lake,  323. 

of  waters,  324. 

points  to  be  considered  in  dividing,  301. 

rules  as  to  different  states,  324. 

BLAZED  TREES, 

destroyed  on  random  line,  214. 

markings  of,  213. 

not  on  random  lines,  214. 

BOUNDARIES, 

a  change  in  line  if  a  stream,  293. 

actual  water  front  the,  255. 

agreed  upon  conclusive,  559. 

agreement  may  be  binding,  562. 

agreement  on,  not  a  conveyance,  562. 

agreements  as  to,  556,  585,  593. 

agreements  as  to,  not  transfer  title,  565. 

agreements  as  to  favored,  568,  571,  572. 

agreements  as  to  derives   additional   weight  by  acquiescence, 

571,  572. 

ancient  proven  by  declarations,  231. 
between  nations,  162. 
between  Nebraska  and  Missouri,  246. 


INDEX  593 

BOUNDARIES— Continued. 

between  owners  of  accretion,  316. 

between  states,  162,  246,  251,  252,  244,  246,  286,  293,  420,  421. 
between  Wisconsin  and  Minnesota,  293. 
changed  by  treaty  162. 
conclusive  run  by  surveyor  selected,  564. 
consent  to  rectify  crooked,  558. 
courts  loathe  to  change  long  established,  585. 
declarations  as  to,  230,  566. 
declarations  of  surveyor,  231_ 
disagreement  as  to,  essential,  572. 
disputes  as  to,  376. 

established  by  ancient  fences,  410,  419. 
evidence  of  common  repute,  405. 
field  notes  and  plat  as  evidence,  210. 
high-water  mark  as  boundary,  198. 
honest  dispute  as  to,  557,  563,  566,  570,  572. 
ignorant  as  to,  by  parties,  561. 
indefinite  agreement  as  to,  568. 

"in  re-establishing  question,  where  was  original  line,  405. 
in  some  states  low-water  mark,  166. 
line  long  recognized,  405. 
location  of  one  line  by  another,  409. 
long  acquiesence  in,  566. 
long  acquiesence  of  between  states,  252,  293. 
meander  lines  not,  255. 
natural  features,  492. 
need  not  be  in  middle  of  stream,  293. 
Northern  of  Ohio  extend  to  Canada,  162. 
not  generally  bound  by  mistake  in,  565,  566. 
occupying  to,  593. 
occupying  to  true,  593. 
of  Wisconsin,  421. 
original  lines  must  govern,  414. 
parol  agreement  as  to,  557,  561,  563,  565,  570. 
parol  evidence  as  to,  412. 
pointing  out,  570. 
pointing  out  by  declarant,  231. 
possession  according  to  agreement,  563. 
practical  location  of,  569. 
private,  416. 

private  proven  by  repute,  232. 
recognized  by  parties,  441. 
shifting  water  line  the,  255. 
sudden  change  of  stream,  321. 
trustee  bound  in  private  capacity,  560. 
undisputed  line  in  other  town,  408. 
water's  edge,  167. 
water  line  a,  so  remains,  284. 
water  must  form  to  give  riparian  rights,  299. 
where  water  line  boundary  deed  carried  accretion,  58. 

BOUNDARY  LINES, 

original  in  Canada  control,  6'41. 


594  INDEX 

CALLS, 

artificial  control,  239. 

conflict  of,  most  material,  239. 

courses  and  distances  most  unreliable,  239. 

extrinsic  evidence  to  explain,  465. 

for  natural  objects,  control  courses  and  distances,  51,  239. 

inconsistent,  477. 

inconsistent,  given  effect  how,  387. 

mistakes  in  corrected,  240. 

most  certain  calls  control,  51,  239. 

natural  objects  control,  239. 

omission  in  supplied,  238. 

quantity  supporting,  taken,  480. 

should  be  harmonized,  83. 

some  preferred  over  others,  83. 

surrounding  circumstances  as  to,  239. 

uncertain  calls  may  be  rejected,  51. 

CANADA, 

base  lines  in,  628. 

corners  on  correction  lines,  634. 

correction  lines,  629. 

correction  of  survey  in,  638. 

errors  in  surveys  in,  630. 

legal  subdivision,  635. 

ranges  in,  627. 

resurvey  in  petition  in,  639. 

special  instructions  in  surveys,  636. 

surveyed  by  rectangular  system,  625. 

surveys  in,  625. 

systems  of  surveys  in,  625. 

townships  in,  627. 

CENTER  OF  SECTION, 

how  established,  45,  59. 

how  established  in  fractional  sections,  45. 

how  found,  130,  131. 

one  quarter  corner,  how  establish,  59. 

state  statutes  contravening  federal  as  to  void,  59. 

CHAINMEN, 

should  be  sworn,  77. 

CLOSING  CORNERS, 
how  marked,  224. 
how  restored,  348,  352,  384. 
in  exceptional  cases,  114. 
on  standard  parallel,  to  establish,  528. 
proportion  to  be  used,  349. 
to  establish,  531. 
what,  27. 

CLOSING  TOWNSHIP  CORNERS, 

connected  with  standard  corner,  220. 
how  marked,  220,  223. 


INDEX  595 

COLOR  OF  TITLE, 
what  is,  590. 

CONNECTICUT, 

survey  of,  622. 

CONSTRUCTION, 

"according  to  government  survey,"  '493,  495,  518. 

"according  to  original  survey,"  493,  495. 

acts  of  parties,  475. 

adhere  to  quarter  line,  454. 

adjoining  property  consulted,  459. 

agreement  as  to  boundary,  505. 

"along  easterly  line  of  street,"  486. 

"along  or  upon  a  road,"  486. 

angles  paramount  to  surface,  487. 

as  to  riparian  rights,  312. 

as  valid  and  effective,  427. 

based  on  land  marks,  471. 

bayou  may  be  navigable  river,  504. 

"beginning  at,"  443. 

"beginning  at  an  angle  in  the  stone  wall,"  486. 

"beginning  on  side  of  new  road,"  486. 

boundary  between  owners  on  fresh  water  stream,  506. 

boundary  recognized  by  parties,  441. 

bounded  by  river  or  road,  500. 

"bounded  by  a  navigable  river,"  498. 

calls  incomplete,  451. 

"center  of"  highway,  448. 

"center  of"  street,  457. 

claim  actual  measurement,  501. 

conflict  of  deeds  from  same  grantor,  499. 

contents  yield  to  boundaries,  447. 

course  and  distance  rejected,  488. 

definite  over  indefinite,  487. 

"doubtful,"  505. 

"down  center  of  creek,"  491. 

"down  said  river,"  500. 

"down,"  508. 

"easterly,"  504. 

east  half  tract  containing  fifty  acres,  493,  494. 

evident  intention  to  govern,  467. 

excess,  456. 

false  and  inconsistent  description,  428. 

"fractional  part"  of  government  subdivision,  494. 

given  by  interested  parties,  505. 

given  quantity,  450. 

Government  plan  aids,  461. 

grantee  takes  to  middle  of  stream,  487. 

if  no  figure  called  for  in  a  survey  presumed  to  be  a  square,  51. 

importance  of,  426. 

inconsistent  calls,  477,  484. 

inconsistent  description  439,  467. 

intent  gathered  from  whole  description,  434. 

invalid  plat,  458. 

invalid  plat  referred  to,  479. 


596  INDEX 


CONSTRUCTION— Continued. 

irreconcilable  description,  '436. 

latent  ambiguity  explained,  435. 

lines  run  control,  490. 

long  occupation  considered,  438. 

map  referred  to  controls,  487. 

may  discard  calls,  452. 

may  reject  part  of  descriptions,  473. 

meaning  of  "and  binding  therewith,"  56. 

meaning  of  "due  west,"  shown  by  extrinsic  evidence,  51. 

meaning  of  "on  the  bank  of  a  river,"  56. 

meaning  of  "to  a  point  in  the  river,"  56. 

monuments  control,  460. 

monuments  paramount,  487. 

"more  or  less  according  to  United  States  Survey,"  517. 

most  certain  calls  control  less  certain,  51. 

most  strongly  against  grantor,  430,  481,  484. 

natural  boundary  controls  courses,  509. 

natural  features,  492. 

no  other  land  owned  helps  out,  469. 

"northerly,"  445. 

"north  line"  of  road,  449. 

north  80  acres  of  quarter,  518. 

"north  seven  chains  to  lake,"  501. 

"northwest  corner"  of  lot,  496. 

"not  to  be  occupied  by  buildings,"  "Public  Grounds,"  555. 

of  deeds,  430,  431,  432,  433. 

of  description,  311. 

"one-half"  of  creek,  491. 

"on  Seery  place,"  502. 

on  tide  water  grantee  takes  high-water  mark,  487. 

original  corners  govern,  462. 

outer  line  controlling  factor,  468. 

parol  evidence,  442. 

particular  words  control  general,  483. 

plat  essential  part  of  deed,  485. 

presumed  to  make  valid  deed,  482. 

prevailing  intention,  437. 

private  way  a  boundary,  455. 

quantity  of  factor,  453. 

quantity  supporting  call,  480. 

reference  to  other  papers,  466. 

referring  to  plan,  4'46. 

"running  to,"  444. 

"side  of  stream,"  506. 

"stake  and  stone,"  504. 

surrounding  circumstances  considered,  489,  502. 

technical  terms  help,  472. 

"the  lot,"  496. 

"thence  up  said  river,"  500. 

"to  a  fence,"  507. 

"to  low  water  mark,"  508. 

to  natural  objects,  508. 

•to  said  highway";  then  by  said  highway,  486. 

"to  the  pond,"  504. 

"to  tree  on  bank  of  river,"  497. 

tract  bounded  on  private  way,  502. 


INDEX  597 

CONSTRUCTION— Continued. 

under  California  statute,  487. 

unrecorded  plats  referred  to,  440. 

variance  in  distance  presumed  whole  line,  464. 

water  a  boundary,  509. 

"west  half,"  493,  494. 

what  distance  to  take,  495. 

words  of  description  given  great  weight,  54. 

words  rejected  as  surplussage,  429. 

CONTENTS, 

yield  to  boundaries,  447. 

CONVERGENCE  OF  MERIDIANS, 
as  to  guide  meridians,  26. 
as  to  standard  parallels,  27. 
counter -acted  how,  27. 
in  sub-dividing  township,  104,  106. 
not  same  in  all  latitudes,  27. 
table  of,  106. 

CORNERS, 

ancient,  419. 

as  established  to  govern,  462. 

distinction  between,  and  monument,  372. 

Government  conclusive,  385. 

how  marked,  14,  16. 

known,  defined,  374. 

long  recognized,  396. 

marked  are  the  proper  corners,  56. 

must  mark  trees  near  corner,  51. 

must  search  for,  396. 

not  marked,  how  placed,  56. 

not  regarded  as  lost,  374. 

not  to  be  changed  by  state,  385. 

not  to  be  corrected  by  court,  388. 

old  fences  at,  17. 

on  base  lines  marked,  229. 

on  meridional  township  lines,  229. 

on  standard  parallels,  229. 

original  and  patent  inconsistent,  414. 

preserved  by  land  owner,  79. 

regard  field  notes  to,  396. 

relocating,  15. 

remains  of,  14,  16,  17. 

searching  for  lost,  16. 

should  be  marked,  82. 

true  corner  where  Government  surveyors  placed  it,  59,  237,  240. 

unchangeable,  45,  56,  240. 

where  government  surveyors  placed  them,  395. 

CORNERS  COMMON  TO  FOUR  TOWNSHIPS, 
how  marked,  221. 

CORNERS  COMMON  TO  TWO  TOWNSHIPS, 
how  marked,  222. 


598  INDEX 

CORRECTION  LINES 

SEE  STANDARD  PARALLELS. 
corners  on,  in  Canada,  634. 
established,  2,  27. 
formerly  run  further  apart,  27. 
in  Canada,  629. 

COURSES, 

controlled  by  fixed  monuments,  415. 

defined,  6. 

may  be  varied,  415. 

old  presumed  correct,  13,  45. 

retracing,  10,  9. 

yield  to  fixed  monuments,  8,  51,  59,  211,  236,  237,  239,  395. 

COVE, 

filling  up,  317. 

DECLARATIONS, 

SEE  EVIDENCE. 

after  parting  with  title,  234. 

against  interest  of  declarant,  232. 

as  to  location  of  lost  corner,  397. 

as  to  boundary,  566. 

as  to  identity  of  corner,  231. 

as  to  private  boundaries,  404. 

before  controversy,  230,  232. 

by  owner  against  interest,  232. 

by  person  in  possession,  232. 

by  surveyor  when  not  on  ground,  231. 

can  not  contradict  record  by,  403. 

declarant  had  knowledge,  231. 

deposition  of  deceased,  231. 

deposition  of  surveyor  as,  416. 

field  notes  of  surveyor,  231. 

made  on  ground,  231. 

not  refutation,  231. 

not  to  contradict  official  survey,  231. 

of  adverse  holder,  592. 

of  agent,  235. 

of  chainmen,  419. 

of  deceased  owners,  231. 

of  interested  persons,  419. 

of  old  residents,  376,  401,  403,  411,  415,  416. 

of  owner  of  adjoining  tract,  419. 

of  person  in  possession,  416,  419. 

of  persons  since  deceased,  11,  79,  80,  230,  416,  419. 

on  public  boundaries,  233. 

of  surveyor,  80,  376. 

of  surveyor  to  show  mistake,  399. 

of  surveyor  as  evidence,  403. 

of  surveyor  since  deceased,  231,  400,  410,  416. 

pointing  out  boundary,  231. 

receive  with  caution,  232. 

strict  rule  in  same  state  regarding,  233. 

weight  of  authority  in  United  States,  233. 

what  surveyor  said,  231. 


INDEX  599 


DEDICATION, 

acceptance  by  donee,  545,  548. 

acceptance  by  user,  548. 

acceptance  within  reasonable  time,  548. 

accretion  in,  271. 

acts,  inconsistent  with  trust,  550. 

acts  not  amounting  to,  551. 

acts  of,  547. 

by  plat,  580,  581. 

by  platting,  241,  547,  548. 

by  user  and  estoppel,  582. 

conveyance  on  street  before  vacation,  549. 

conveyance  on  vacated  street,  549. 

court  can  not  extinguish  reverter,  550. 

donee  can  not  divest  itself  of,  549. 

erection  of  wharf,  not,  551. 

estoppel  of  donee,  553. 

estoppel  of  donor,  554. 

fee  may  remain  in  donor,  549. 

how  made,  547. 

implies  donor  and  donee,  545. 

injunctional  suit  by  dedicator,  549. 

intention  of  owner  gist,  547. 

irrevocable,  550. 

lands  generally  revert,  550. 

limitations  on,  549. 

lot  owners  have  interest  in,  555. 

may  be  by  user,  581. 

may  be  enjoyed  by  limited  class,  546. 

no  consideration  necessary,  545. 

of  ancient  origin,  546. 

owner  takes  to  center  dedicated  street,  549. 

plat  must  be  recorded  to  make,  581. 

public  presumed  to  accept,  548. 

reservations  of  minerals  on,  552. 

reversion,  importance  of,  550. 

state  can  not  destroy  trust,  549. 

statute  of  fraud  does  not  apply,  547. 

to  charitable  use,  546. 

to  public,  545,  546. 

what  is,  546. 

withdrawal  of  offer  of,  549. 

with  or  without  writing,  547. 

words  of,  555. 


DEEDS, 


can  surveyor  locate,  470. 

conflict  of  from  same  person,  499. 

construction  of  equitable,  431. 

construed  as  void  and  effective,  427. 

construed  most  strongly  against  grantor,  430,  484,  503. 

intent  gathered  from  whole,  434,  437. 

presumed  to  be  void,  482. 

reference  to  other  instruments,  433. 

reference  to  patent  in,  463. 


60O  INDEX 

DEEDS — Continued. 

reference  to  unrecorded  plat,  440. 

referring  to  plan,  446,  485. 

should  have  reasonable  construction,  432. 

DEFICIENCY, 

apportion  on  whole  line,  436,  371. 
apportioned  to  all  lots,  180. 
apportioned  to  entire  line,  371,  456. 
apportionment  of,  171,  172,  176,  177,  186. 
correct  in  Indiana,  177. 
criticism  of  Missouri  court  on,  177. 

deducted  from  Northern  and  Western  tiers  of  sections  in  town- 
ship, 51,  34,  101,  115. 
deeds  by  same  grantor  at  same  time,  188. 
deeds  show  intent  to  convey  whole  lot,  182. 
distributed  over  whole  line,  171. 
divided  between  owners  as  adjudged,  172. 
divided  between  several  devisees,  172. 
equitable  apportionment  of,  176. 
error  in  platting,  186. 

frontage  of  all  lots  except  one  given,  191,  193. 
grantee  first  in  time,  190. 
in  Canada,  631. 

in  irregular  lots  not  parallel,  184. 
in  irregular  tracts,  189. 
in  proportion  to  widths  granted,  179. 
in  sections  on  north  side  of  township,  171,  173. 
in  townships  in  Canada,  646. 
in  two  northern  tiers  of  sections,  174. 
may  be  taken  from  east  side  of  township,  117. 
no  advantage  to  any  owner,  172,  173. 
permanent  monuments  tr  not  to  be  moved,  194. 
presumed  to  arise  out  of  whole  line,  172,  181. 
presumed  to  cover  whole  line,  181. 
proportional  measurements,  343. 
quotation  from  Iowa  court  on,  173. 
replatting  original  block,  192. 
rules  as  to  must  be  followed,  343. 
separate  surveys  and  successive  grants,  190. 
sometimes  falls  on  fractional  lot,  187,  191. 
sometimes  thrown  to  south  and  east,  86. 
state  law  held  invalid  as  to,  57. 
state  law  in  conflict  with  federal  law  void,  177. 
taken  from  north  or  west,  132. 
transfer  of  whole  tract,  how  divided,  178. 
variations  in,  172. 
when  not  apportioned,  185. 

when  tract. supposed  to  contain  a  certain  area,  183. 
where  quarter-corner  can  not  be  found,  57. 

DELAWARE, 

boundary  of,  425. 

DEPENDENT  RESURVEYS, 

claims  shall  be  respected  in,  120. 


INDEX  6OI 

DEPENDENT  RESURVEYS— Continued. 
diagram  of,  124. 
example  illustrating,  124. 
key  to  diagram  of,  124. 

original  survey  legal  if  no  fraud  or  mistake,  120. 
restoration  of  corners,  124. 
rules  as  to,  102,  120. 

surveyor  should  have  notes  of  original  survey,  120. 
when  made,  120. 

DEPOSITION, 

of  deceased  surveyor,  416. 

DERELICTION, 

defined,  245. 

how  determined,  251. 

DESCRIPTION, 

acts  of  parties  may  determine,  475. 

aided  by  Government  plan,  461. 

ambiguous,  413. 

by  lots  rejected,  478. 

calls  incomplete,  451. 

can  surveyor  locate,  470. 

conflicting  calls  in,  412. 

construction  of,  430,  431,  433,  434. 

construction  under  California  statute,  487. 

evidence  aliunde  to  aid,  474. 

false  and  inconsistent,  428. 

given  quantity,  450. 

if  clear  can  not  be  explained,  412. 

inconsistent,  439,  467. 

irreconcilable,  436. 

latent  ambiguity  in,  435. 

length  of  outer  line  controlling,  468. 

long  occupation,  438. 

may  apply  to  deed  by  parol  evidence,  412. 

may  discard  calls,  452. 

mistaken  in,  414. 

particular  words  control  general,  483. 

patent  part  of,  463. 

plat  governs,  476. 

practical  construction  as  to,  413. 

prevailing  intention,  437. 

quantity,  453. 

reference  to  other  instruments,  433. 

reject  part  of  description,  473. 

words  in,  rejected  as  surplussage,  429. 

DETACHED  SURVEYS, 

joinder  to  regular,  102. 

DISTANCES, 

apportioning,  7,  9. 

controlled  by  monuments,  415. 

may  be  shortened  or  lengthened,  415. 

monuments  marking,  10,  11. 


6O2  INDEX 

DISTANCES— Continued. 

original  presumed  correct,  7,  8,  45. 

yield  to  fixed  monuments,  8,  51,  211,  236,  237,  239,  395. 

DOCK  PRIVILEGES, 

consider  line  of  navigability,  243. 

construct  to  water  front,  277. 

distinguished  between  rights  to  lakes,  302. 

division  of,  242,  243,  248,  259,  302. 

general  rule  as  to,  297. 

line  of  division  to  run  from  water  line,  259. 

on  sea,  270. 

owner  of  shore  may  build  dock,  265,  277,  287. 

right  of  public  to  build  docks,  297. 

right  to  build  docks,  297. 

rules  for  division,  248,  254,  261. 

DOCKS, 

not  to  interfere  with  navigation,  324. 
riparian  owner  may  erect,  551. 

DOUBLE  CORNERS, 

distance  from  standard  corners,  100. 

error  now  permitted,  335. 

established  early  surveys,  333,  334. 

how  established,  134. 

in  old  surveys,  133. 

in  recent  surveys,  133. 

must  be  entered  in  notes,  100. 

now  established  on  correction  lines  only,  334. 

on  correction  lines  are  closing  corners,  334. 

on  four  sides  each  township,  333. 

on  standard  parallels,  100. 

on  town  and  range  lines,  333. 

sometimes  on  all  sides  of  township,  87. 

to  establish  one  of  two,  533. 

to  establish  where  both  missing,  534. 

to  restore  both,  358. 

to  restore  one  established  when  township  run,  358. 

to  restore  one,  other  known,  357. 

to  restore  one  when  township  subdivided,  359. 

where  found,  27. 

DOUBLE  PROPORTIONATE  MEASUREMENT, 
defined,  139,  379. 
how  used,  379. 
illustration  of,  124. 
in  locating  lost  corner,  124,  133. 
reliable,  139. 

EASEMENT, 

owners  of  lots  have,  in  streets,  parks,  etc.,  584. 

ESTOPPEL, 

acquiescence  for  long  period,  565. 
asserted  in  boundary  disputes,  569. 
as  to  agreed  line,  572. 


INDEX  603 


ESTOPPEL — Continued. 
as  to  highway,  606. 
by  acts  of  party,  570. 
dedication  by,  581,  582. 
may  be  on  an  agreed  line,  566. 
not  by  acts  of  surveyor,  564. 
not  by  five  year  acquiescence,  564. 
occupying  to  line  agreed  upon,  568. 
of  donee  in  dedication,  553. 
of  donor  in  dedication,  554. 
pointing  out  lines,  570. 
proprietor  of  plat,  584. 
to  deny  existence  of  street,  584. 

EVIDENCE, 

SEE  DECLAEATIONS. 

acquiesence  of  parties  as,  398. 

acts  of  public  authorities  as,  398. 

admitted  monuments  conclusive,  236. 

aliunde  to  aid  description,  474,  483. 

ancient  fences,  10,  11,  72,  410. 

ancient  plan  as,  407,  417,  418. 

ancient  survey  as,  410,  418. 

as  boundaries  of  states  and  nations,  420, 

as  to  conflicting  calls,  239. 

as  to  which  state  exercises  jurisdiction,  421. 

burden  of  proof  on  him  who  assails  grant,  51. 

by  old  residents,  376. 

by  surveyor,  411. 

certainty  of,  80. 

common  repute  as  to  boundary,  405,  415,  419. 

copies  of  official  map  as,  583. 

courses  and  distances,  415. 

declarant  had  peculiar  knowledge,  231. 

declarations,  11,  72,  79,  80. 

declarations  of  adverse  holder,  592. 

declarations  of  agent,  235. 

declarations  of  chainmen  as,  419. 

declarations  of  deceased  persons,  230,  397. 

declarations  of  surveyor,  399,  400,  403,  376. 

dehors  instruments  to  establish  tract,  241. 

deposition  of  deceased  surveyor  as,  416. 

extrinsic  as  to  lost  corners,  240. 

extrinsic  in  determining  accretion,  310. 

extrinsic  only  when  necessary.  80. 

extrinsic,  to  establish  lost  corners,  397. 

extrinsic  to  explain  calls,  465. 

fences  as,  of  corner,  398. 

field  notes  as,  240,  400. 

field  notes  may  not  be  proper,  210. 

hearsay  may  be  received  on  lines,  231,  232. 

in  dividing  flats,  305. 

judicial  notice  of  state  boundary,  424,  251. 

location  of  one  line  by  another,  409. 

lost  corner  re-established  by  old  residence,  237. 

lost  highway  proven,  237. 

maps  as,  406. 


604  INDEX 

EVIDENCE — Continued. 

marked  trees,  as,  415. 

monuments  subject  of  parol,  230. 

natural  features  as,  397. 

of  adverse  possession,  590,  591. 

of  common  report  as  to  corner,  405,  415,  419. 

of  deceased  surveyor,  404,  410. 

of  natural  features,  492. 

of  surveyor,  231. 

original  notes  as,  237. 

other  monuments  may  be  shown,  236. 

parol  necessary,  230. 

parol  of  private,  583. 

parol  to  explain  description,  412. 

parol  to  explain  latent  ambiguity,  578. 

parol  to  identify  monument,  413. 

parol,  to  show  boundary,  412. 

plat  may  not  be  admissible,  210. 

plats  and  descriptions  from  field  notes  on,  51. 

plats  as,  240. 

proof  as  to  accretion,  255. 

proof  of  accretion,  292. 

remains  of  monument,  15. 

reputation  not  generally,  231. 

reputation  and  tradition  as,  398. 

show  omission  in  calls,  238. 

undisputed  line  in  another  town  as,  408. 

unrecorded  plat  as,  241. 

witness  trees,  14. 

EXCESS, 

added  to  northern  and  western  tier  of  sections  in  township,  34, 

51,  101,  115. 

apportioned  on  whole  line,  456. 
apportioned  to  all  lots,  180. 
apportioned  to  owners  as  adjudged,  172. 
apportioned  to  several  devisees,  172. 
apportioned  to  entire  line,  371. 
apportionment  of,  171,  172,  176,  177,  186,  188. 
correct  in  Indiana,  177. 
criticism  of  Missouri  court  on,  177. 
deeds  by  same  grantor  at  same  time,  188. 
deeds  show  intent  to  convey  whole  lot,  182. 
distributed  on  whole  line,  171. 
equitable  division  of,  176. 
error  in  platting,  186. 

frontage  of  all  lots  except  one  given,  191,  193. 
grant  first  in  time,  190. 

in  irregular  lots  not  paralleling  each  other,  184. 
in  irregular  tract,  189. 
in  proportion  to  widths  granted,  179. 
in  sections  on  north  side  of  township,  171,  173. 
in  two  northern  tiers  of  sections,  174. 
may  be  thrown  to  east  side  of  township,  117. 
no  advantage  to  any  owner,  172,  173. 
not  conveyed  at  same  time,  185. 


INDEX  605 

EXCESS — Continued. 

one-sixteenth  corner  north  tier  of  sections,  175. 

permanent  monument  not  to  be  moved,  194. 

presumed  to  arise  out  of  whole  line,  172,  181. 

presumed  to  cover  whole  line,  181. 

proportional  measurement,  343. 

quotation  from  Iowa  court  on,  173. 

replatting  of  original  block,  192. 

rules  as  to,  must  be  followed,  343. 

separate  surveys  and  successive  grants,  190. 

sometimes  falls  on  fractional  lot,  187,  191. 

sometimes  to  south  and  east,  86. 

state  law  held  invalid  as  to,  57. 

state  law  in  conflict  with  federal  void,  177. 

thrown  to  north  and  west,  132. 

transfer  of  whole  tract,  how  divided,  178. 

variance  in  whole  line,  464.      ..  . 

variations  in,  172. 

when  not  apportioned,  185. 

when  tract  supposed  to  contain  certain  area,  183. 

EXPERT, 

as  to  customs,  578. 
corner  according  to  notes,  578. 
opinion  as  to  marks  not  admissible,  578. 
surveyor  as,  578. 

EXTINCT  CORNERS, 

memorials  to,  342. 

restored  to  original  location,  342. 

FIELD  NOTES  AND  PLATS, 

ancient,  as  evidence,  418. 

approved  plat  imports  verity,  51. 

data  in  natural  features,  71. 

delivered  to  secretary  of  state  or  other  officer  of  state,  47. 

forward  to  commissioner  of  land  office,  51. 

free  access  to  public  shall  be  given  by  state,  49. 

keep  record  of,  82. 

must  make  notes  of  all  markings,  51. 

must  note  natural  features,  51. 

notes  not  evidence  of  boundaries,  51. 

official  plat  governs,  54. 

plats  and  notes  are  evidence,  51. 

plats  must  be  made,  51. 

plats  need  not  be  made  by  deputy  surveyor,  51. 

state  must  provide  for  safe  keeping,  50. 

variation  between  plat  and,  210. 

yield  to  monument,  581. 

FLATS,      ' 

bordering  on  sea,  270. 
dividing  on  curved  shores,  300. 
division  of,  269,  272,  305,  317,  324,  325. 
equitable  division  of,  300. 
in  complex  cases,  305. 


606  INDEX 

FLATS — Continued. 

in  convex  shore,  305. 
rules  for  apportioning,  300. 

FRACTIONAL  LINES, 

closing  on  reservations,  etc.,  to  restore,  537. 
point  of  intersection  not  indicated,  to  restore,  537. 
restoration  of,  363. 

FRACTIONAL  LOTS, 

adjacent  to  townsite,  146. 

areas  of,  sometimes  omitted,  155. 

boundaries  of,  144. 

computation  of  area,  141  a,  155,  156,  157,  158. 

defined,  142. 

designation  of,  145. 

examples  in  computing  area,  157. 

formed  in  office,  143. 

fractional  sections  platted  into  lots,  141  a. 

in  irregular  surveys,  154. 

in  north  boundary  of  township,  148. 

in  section  six,  150,  157. 

instructions  as  to  numbering,  153. 

in  west  boundary  of  township,  149. 

knowledge  of  necessary,  141  a. 

numbered,  141  a,  145. 

no  duplication  of  numbers,  153. 

on  islands,  145,  147. 

on  mining  claims,  152. 

on  water  frontage,  143. 

on  reservations,  151. 

position,  145. 

remarks  on,  159. 

rules  for  forming,  144,  148,  149. 

survey  of,  340. 

uniformity  in  numbering,  153. 

what  sections  are  fractional,  141  a,  142. 

FRACTIONAL  SECTIONS, 

contents  of,  conclusive,  340. 

in  fractional  township,  134. 

laying  out,  62. 

lines  in,  how  run,  56,  61,  340,  341. 

lots  in,  340. 

must  be  subdivided  under  federal  law,  51. 

one -fourth  or  one-half  part  of  returned  area,  56. 

one -sixteenth  corner  north  of  center,  136. 

platted  into  lots,  141  a. 

rules  for,  62. 

rules  for  subdividing,  144,  340. 

running  lines  in,  134. 

running  "mean  lines"  in,  134. 

some  discretion  allowed  surveyor  in  laying  out,  62. 

state  law  in  conflict  with  federal  law  void,  51. 

subdividing  irregular,  141. 

subdivision  of,  134,  137,  367. 

what  sections  are,  141a,  142. 


INDEX  607 


FRACTIONAL  SECTIONS— Continued. 
where  meander  corner  lost,  138. 
where  two  sides  of  section  lacking,  13"4. 

FRACTIONAL   TOWNSHIPS, 

sectional  guide  meridians  in,  125. 
subdivision  of  east  to  west,  125. 
subdivision  of  north  to  south,  125,  126. 
subdivision  of  west  to  east,  126. 

FRAGMENTARY  TOWNSHIPS, 
illustration  of,  127. 
lines  in  respected,  127. 
lines  of,  presumed  correct,  127. 
local  surveyor  must  have  full  notes  of  survey,  127. 
partially  subdivided,  127. 

GENERAL  LAND  OFFICE, 
established,  36. 
information  from,  129. 
re -organization  of,  40. 
under  "interior  department,"  36. 

GEORGIA, 

boundary  of,  425. 

GREAT  LAKES, 

riparian  owner  takes  to  meander  line,  165. 
state  owns  beds,  165. 
where  a  boundary,  170. 

GUIDE  MERIDIANS, 

convergence  of,  98. 

defined,  2. 

how  established,  2,  24,  26,  95,  98. 

if  southerly,  how  run,  95. 

in  early  surveys,  95. 

in  exceptional  cases,  117. 

HIGH  SEAS, 

defined,  424. 

Great  Lakes,  all,  424. 

HIGH  WATER  MARK, 
a  boundary,  198. 

changes  with  change  of  waters,  198. 
how  determined,  298,  315. 
may  be  above  or  below  meander,  198. 
meaning  of,  260,  298. 

HIGHWAYS, 

abandonment  of,  604. 

alteration  of,  602. 

ancient  fences  on  line  of,  599. 

by  user  or  prescription,  600. 

defined,  596. 

elevation  deflecting  travel  on,  608. 


6o8  INDEX 

HIGHWAYS— Continued. 
estoppel  as  to,  606. 

equity  may  remove  obstruction  to,  608. 
failure  to  open  or  repair,  605. 
fencing  in  part  of,  606. 
general  procedure  in  laying  out,  597. 
laying  out,  596,  597. 
lost  proved  by  old  residents,  237. 
marking  corners  and  angles,  598. 
new  over  old,  605. 
non-user  of,  604. 
owners  of  lots,  rights  in,  584. 
retracing  line  of,  599. 
state  law  regulates,  596,  597. 
survey  of,  586,  598. 
under  special  statutes,  608. 
unreasonable  delay  in  opening,  606. 
vacation,  603. 
what  is  user,  601. 

HOLLAND  PURCHASE, 

information  about,  614. 
resurvey  of,  613. 
survey  of,  611,  612. 
townships  in,  612. 

ILLINOIS, 

boundary  between,  and  Iowa,  425. 

IMPASSABLE  OBJECT, 

marked  by  witness  point,  215. 

IMPERCEPTIBLE, 
defined,  310. 

INDEPENDENT  RE-SURVEYS, 
defined,  121. 

must  agree  with  previously  established  lines,  121. 
proper  where  gross  frauds  in  original  survey,  121. 
three  steps  in,  121. 

INDEPENDENT  SURVEYS, 
rules  as  to,  102. 

INDIANA, 

boundary  of,  425. 

INTERNATIONAL  BOUNDARY, 

between  United  States  and  Canada,  628. 

INSTRUCTIONS, 

by  land  department,  332. 
early  instructions  not  printed,  332. 
later  instructions  published,  332. 
special  given,  510. 


INDEX  609 


INSTRUMENTS, 

must  be  adjusted,  51,  76. 

IOWA, 

boundary  between,  and  Illinois,  425. 

IRREGULAR  TRACT, 

"more  or  less  according  to  United  States  survey,"  to  run  out,  517. 
north  eighty  acres  of  quarter  to  run  out,  518. 

ISLANDS, 

accretion  to,  249,  296,  317. 

certain  belong  to  New  York,  425. 

formed  upon  submerged  land,  267. 

fractional  lots  in,  147. 

fraud  in  survey  of,  294,  317,  321. 

fraud  in  omitting  survey  of,  253. 

in  non-navigable  stream,  state  owns,  253. 

jurisdiction  of,  in  boundary  waters,  422. 

located  with  reference  to  main  land,  204. 

loss  of  shore  to  owner  of,  310. 

lots  tied  to  main  shore,  147. 

making  by  change  of  stream,  318. 

meander  of,  204. 

mistake  in  survey  of,  294,  317,  321. 

movable,  296. 

omitted,  may  be  surveyed,  66. 

on  one  side  of  thread  of  stream,  308. 

owned  by  proprietor  of  shore  in  Wisconsin,  253. 

owned  by  state  in  Minnesota,  253. 

ownership  of,  308. 

should  be  surveyed,  204. 

shore  opposite  washed  away,  249. 

sometimes  owned  by  state,  294. 

springing  up  in  stream,  321. 

Staten  Island,  425. 

sudden  change  on,  310. 

survey  of,  in  stream  omitted,  324. 

unsurveyed,  317. 

unsurveyed  belong  to  shore  owner,  169. 

unsurveyed  by  fraud  or  mistake,  169. 

unsurveyetf  in  navigable  rivers,  253,  294,  312. 

unsurveyed  may  pass  to  shore  owner,  66,  244,  264. 

ISOLATED  SURVEYS, 
retracing,  88. 
special  instructions  for,  88. 

JUDICIAL  NOTICE, 

of  boundaries  of  states,  424. 
taken  of  state  boundaries,  251. 
will  not  take,  of  change,  251. 

JURISDICTION, 

as  to  Lake  Huron,  424. 

as  to  Lake  Michigan,  425. 

on  Mississippi  river,  424. 

United  States  courts  in  Detroit  river,  424. 


6lO  INDEX 

KENTUCKY, 

boundary  of,  425. 

Wolf  island  part  of  state  of,  425. 

LAKE,  LONG, 

beds  of  small,  326. 
division  of  bed  of,  322. 
division  similar  to  streams,  322. 
title  to  bed  of,  323. 

LAKE,  NON-NAVIGABLE, 

between  nations  or  states  open  to  both,  162. 
rights  in  determined  by  state,  165. 
rights  of  shore  owner  in,  162,  170. 
riparian  owner  follows  receding  water,  162. 

LAKE,  ROUND. 

be,d  of,  how  divided,  301. 
criticism  of  decisions,  301. 
examples  of  dividing  bed  of,  301. 
points  to  be  considered,  301. 

LAKES, 

beds  of,  in  non-navigable,  256,  273,  277. 

beds  of  navigable,  276. 

bed  of  small,  division  of,  326. 

conveyance  on,  carried  all  land,  275. 

dried  up  bed  of,  273. 

grant  on,  282. 

island  located  in,  204 

long,  277. 

meandered,  202. 

non-navigable,  280. 

round,  277. 

wholly  within  one  section,  203. 

LAKES  MEANDERED, 

bed  of,  in  state,  160. 

division  of  beds,  of  small,  326. 

government  can  not  grant  title  to  beds,  165. 

law  of  state  governs,  160. 

rights  to  ice  on,  170. 

low-water  mark  boundary  in  some  states,  166. 

rights  in,  determined  by  state,  165. 

riparian  owner  on,  160,  165. 

state  owns,  165. 

submerged  lands  belong  to  state,  165. 

LAKES  NAVIGABLE, 

between  nations  or  states  open  to  both,  162. 

low -water  mark  boundary  in  some  states,  166. 

rights  in,  determined  by  state,  165. 

rights  in  Lake  Michigan,  162. 

rights  of  shore  owner  in,  162,  170. 

riparian  owner  follows  receding  waters,  162. 

state  generally  owns,  162,  165. 

submerged  lands  under,  belong  to  state,  165. 

"three  mile"  limit  not  applicable  to,  162. 


INDEX  6ll 

LAND  SURVEYING 
history  of,  2. 
instruments  for,  12. 
in  the  United  States,  2. 
metes  and  bounds,  3. 
original  monuments,  11. 
rectangular  system  of,  2. 
retracing  lines,  10. 
special  instructions  concerning,  1. 

LINES, 

actually  run  are  boundary,  56. 

actualy  run  are  true  length,  56. 

actually  run  are  true  lines,  56, 

ancient,  419. 

blazed  trees  on,  212,  213. 

in  fractional  sections,  how  run,  56. 

location  of  one  by  another,  409. 

long  abided  by,  409. 

marking,  211. 

not  run,  how  ascertained,  56. 

of  half-quarter  sections,  61. 

position  indicated  by  blazed  trees,  213. 

LINE  TREES, 

aid  to  find  line  and  corner,  75. 
how  marked,  213,  345. 
permanent  monument,  397. 

LOST  CORNERS, 

SEE  EVIDENCE. 
ancient  fences  near,  10,  11. 
caution  as  to  evidence  of,  18. 

common  to  four  townships,  restoration  of,  380,  381. 
declarations  of  deceased  persons,  397. 
defined,  329,  376,  395. 
determined  from  line  trees,  75. 
double  corners,  357,  358,  359. 
established  by  common  report,  405. 
established  by  extrinsic  evidence,  397. 
examine  original  notes  and  instructions,  327. 
examples  of  restoration  of,  380,  381. 
extrinsic  evidence  to  re-establish,  240. 
fences  as  evidence,  398. 
intersection  corners  re-established,  51. 
letter  from  commissioner  regarding,  381. 
located  by  proportionate  measurements,  124,  140,  237. 
located  by  those  who  saw  corner,  398. 
lost  township,  343. 
meander  corners,  362. 
memorials  to,  342. 
monuments  destroyed,  17. 

must  be  re-established  in  original  location,  45. 
on  standard  parallels,  343. 

positive  testimony  as  to,  prevails  over  location  by  recent  sur- 
vey, 401. 


6l2  INDEX 

LOST  CORNERS— Continued. 

proportion  to  be  used,  349. 

quarter  section  corners,  35'4,  355,  356. 

re-established  by  evidence  of  old  residents,  237. 

re-establishing,  17,  237. 

re-establishing  in  Canada,  642. 

re-location  by  natural  features,  71. 

restoration  of,  342. 

restoration  of  interior  section  corners,  353. 

restoration  of,  on  base  and  correction  lines,  346. 

restoration  of,  on  broken  boundaries,  383. 

restoration  of  township  corners,  350,  351,  352. 

restored  by  proportionment  measurement,  391. 

rules  applicable  to  all  systems,  72. 

search  for,  81. 

searching  for  evidence  of,  14,  15,  17. 

searching  for  lost  corner,  140. 

special  information  about,  328. 

testimony  of  old  residents,  397. 

two  points  necessary  to  restore,  391. 

triple  corners,  360,  361. 

void  state  legislation  pertaining  to,  45. 

LOST  LINES, 

declarations  concerning,  11. 

natural  objects  on,  17. 

old  fences,  hedges,  ridges  on,  10. 

original  line  presumed  correct,  10. 

proportional  measurement  on,  9. 

retracing,  9. 

retracing  known  lines  near  by,  89. 

searching  for  evidence  of,  14, 15. 

where  corners  are  lost,  10,  11. 

LOW- WATER  MARK, 

how  determined,  298,  315. 
meaning  of,  298. 

MACOMB'S  PURCHASE, 

information  about,  614. 

letter  from  state  engineer  regarding,  610. 

location  of,  610. 

survey  of,  610. 

MAGNETIC  DECLINATION, 

government  will  not  advise  amount  of,  344. 

practices  in  early  surveys,  344. 

use  of  needle  by  government  surveyors  forbidden,  344. 

MAGNETIC  NEEDLE, 

can  not  be  used  in  public  surveys,  6,  24,  73. 
variation  of,  3. 

MAPS, 

ancient  as  evidence,  407,  418. 
as  evidence,  406,  418. 
from  proper  source,  418. 


INDEX  6l3 


MARKING  TOOLS, 
what,  216. 

MARYLAND, 

surveys  of,  623. 

MEAN  COURSES, 

to  be  run  when,  527. 

MEANDER  CORNERS, 
an  auxiliary,  204. 
bearing  of  original  line  to,  138. 
established  on  islands,  204. 
how  marked,  229. 
how  re-established,  138. 
instructions  of  commission,  195. 
lost  restored  by  proportionate  measurement,  386. 
not  set  at  intersection  of  unsurveyable  lands,  206. 
not  to  be  exposed  to  waves,  205. 
permanently  marked,  201. 
proportional  measurement  to,  138. 
special  established  when,  203. 
temporary  located,  205. 

to  establish,  from  known  quarter-corner,  532. 
to  establish,  from  known  section  corner,  532. 
to  restore,  362. 
to  restore  lost,  382,  386. 
where  established,  201. 
witness  corner  to,  205. 

MEANDER  LINE, 

and  shore  line  differ,  279. 

along  bank,  198,  199. 

along  bayou,  209. 

along  dangerous  streams,  199. 

along  lakes,  ponds  and  streams,  202. 

are  compass  courses,  201. 

around  islands,  204. 

banks  and  water  falls  noted  on,  202. 

bearing  of  original  line  to,  138. 

bounding  marsh,  208. 

corners  noted  on,  201. 

defined,  196. 

division  of  riparian  rights  from,  259. 

does  not  limit  boundary,  198. 

do  not  limit  land,  196,  198. 

examined  before  acceptance,  201. 

follows  general  course  of  stream,  198. 

fraud  in  running,  274,  275,  292,  304,  207,  209. 

fraud  may  make  boundary  line,  58,  255,  273,  279. 

full  notes  on,  198,  199. 

generally  not  along  shallow  stream,  200. 

government  not  bound  where  fraud,  207. 

how  re-established,  138. 

may  be  a  boundary,  207,  208. 

may  not  co-incide  with  shore,  257. 


6 14  INDEX 

MEANDER  LINE — Continued. 

mq^es  and  bounds  control  distances,  209. 

mistake  in  running,  207,  209,  304. 

not  a  boundary  line,  56,  196,  197,  198,  207,  255,  257,  262,  273,  304. 

not  along  national  park,  196,  197. 

not  between  dry  and  swamp  land  206. 

not  considered  in  apportioning  accretion,  255. 

note  streams  crossed,  202. 

not  reservation  between,  and  water,  257. 

not  run,  274. 

not  run  along  reservations,  196,  197. 

proportional  measurements  to,  138. 

repected  if  unnecessary,  199. 

reservation  boundary  following  stream,  197. 

run  as  near  water  as  possible,  283. 

run  at  mean  high-water  mark,  198,  199,  201,  206. 

space  between,  and  water,  292. 

surveyor  must  exercise  common  sense  regarding,  207. 

transit  angles  not  allowed  on,  201. 

variation  between,  and  field  notes,  394. 

variation  between  plat  and  field  notes  as  to,  210. 

when  run,  199. 

MERIDIANS, 

bound  east  and  west  sides  of  township,  21. 

called  range  lines,  21. 

defined,  21. 

former  rule  as  to  sections,  102,  103. 

in  sub-dividing  township,  105. 

table  of  convergence  of,  106. 

METES  AND  BOUNDS, 
defined,  3. 
retracing  lines  in,  3,  4. 

MILITARY  TRACTS, 

survey  of,  in  Ohio,  339. 

MISSISSIPPI  RIVER, 

middle  of,  where,  425. 

MONUMENTS, 

are  accessories,  373. 

at  all  government  corners,  216,  219. 

at  closing  corners,  220. 

at  standard  corners,  219. 

bearing  trees,  217. 

blazed  trees  as,  212. 

B.  T.  means  Bearing  Tree,  345. 

C.  C.  means  Closing  Corner,  345. 
character  of,  375. 

conclusive,  51,  236. 

consists  of,  217. 

control,  460. 

control  courses  and  distances,  211,  395. 

Bourses  and  distances  yield  to,  237. 


INDEX  615 


MONUMENTS— Continued. 

distinction  between,  and  corner,  372. 

disturbed,  345. 

elimination  of,  375. 

entered  in  notes,  375. 

establishing,  5. 

extrinsic  evidence  as  to  when,  236,  237. 

field-notes  yield  to,  581. 

former  markings,  43. 

highest  degree  of  evidence,  376. 

identify,  413. 

identify  by  evidence  of  common  repute,  413. 

if  found  govern,  585. 

in  Canada,  633. 

lost,  10,  236. 

material  for,  5,  43,  211,  216,  217. 

may  show,  existed,  236. 

may  yield  to  course  and  distance,  507. 

M.  C.  means  Meander  Corner,  345. 

natural  and  artificial,  8. 

order  of  desirability,  217. 

paramount  importance,  211. 

permanent,  should  be  established,  211. 

pits  and  mounds,  220. 

recent  markings,  43. 

records  of,  211. 

relocating,  14,  15,  16. 

search  for,  342,  374,  375. 

S.  C.  means  Standard  Corner,  345. 

subject  of  parol  testimony,  230. 

tree  at  corner,  219. 

used  in  government  surveys,  345. 

W.  C.  means  Witness  Corner,  345. 

witness  trees,  14. 

MOVED   CORNER, 

to  restore,  538. 

NATIONS, 

as  to  which  exercised  jurisdiction,  421. 
boundaries  between,  420. 

NAVIGABLE  RIVER, 

bayou  may  be,  509. 

NAVIGABLE  STREAMS, 
at  common  law,  313. 
course  of,  changing,  318,  321. 
division  of  privileges  on,  243. 
for  irrigation,  247. 
gradual  change  of  shore  of,  249. 
how  to  find  center  of,  319. 
if  change  be  sudden,  state  takes,  245. 
Illinois  rule  as  to  beds  of,  295. 


6l6  INDEX 

NAVIGABLE  STREAMS— Continued. 
in  United  States,  313. 
Iowa  rule  as  to  beds  of,  295. 
island  caused  by  change  of,  318. 
islands  in,  253,  308. 
line  of  navigability,  243. 
lines  of  decisions  regarding,  295. 
Massachusetts  rule  for  finding  center  of,  319. 
owners  rights  on,  317. 
private  owners  along,  252,  273. 
rights  of  owners  on,  315. 
rights  on,  311. 

shore  owner  takes  to  line  of  navigability,  2*44. 
sudden  change  of,  in  United  States  lines  not  changed,  245,  246, 

296. 

thread  of  "center  of  main  channel,"  319. 
title  of  beds  of,  295,  323. 

NAVIGABLE  WATERS, 

line  of  apportioned,  to  shore  owner,  254. 

rules  as  to  in,  Alabama,  California,  Connecticut,  Florida, 
Illinois,  Indiana,  Iowa,  Kentucky,  Louisiana,  Michigan, 
Minnesota,  Missouri,  New  Hampshire,  New  Jersey, 
New  York,  North  Carolina,  Ohio,  Oregon,  Pennsylvania, 
Tennessee,  Texas,  Vermont,  Wisconsin,  324. 

NEW  HAMPSHIRE, 
survey  of,  616. 

NEW  JERSEY, 

boundary  between,  and  New  York,  425. 

NEW  YORK, 

boundary  between,  and  New  Jersey,  425. 
islands  certain,  425. 

NON-NAVIGABLE  STREAM, 

cause  of  changing,  318,  231. 

division  of  accretion  on,  278. 

grant  on,  282. 

how  to  find  center  of,  319. 

island  in,  318,  321. 

title  to  bed  of,  323. 

what  is  center  of,  319. 

NON-USER, 

of  streets  distinguished,  607. 
vacation  highway  by,  604,  606. 

OBLITERATED  CORNER, 
defined,  329. 
memorials  to,  342. 
on  standard  parallel,  343. 
restoration  of,  342. 
special  information  about,  328. 
special  instructions  regarding  original  survey,  327. 


INDEX  6l7 

OHIO, 

boundary  of,  extends  to  Canada,  425. 

ONE-EIGHTH  CORNER, 
how  found,  130,  135. 
in  fractional  sections,  135,  136. 

ONE-SIXTEENTH  CORNER, 

fractional  section,  north  of  center  to  establish,  54'4. 

how  found,  130,  135. 

in  fractional  sections,  135,  136. 

land  office  rule  on  establishing,  544. 

north  of  center  in  fractional  section,  136. 

north  of  quarter  corner  section  six  to  establish,  540. 

other  method  on  establishing,  544. 

ORIGINAL,  SURVEY, 

accurate  knowledge  of,  331. 

corners  conclusive,  341. 

great  accuracy  required  in  recent  instructions,  103. 

how  executed,  338. 

information  regarding,  furnished  by  commissioner,  103. 

knowledge  of  necessary,  103. 

limitation  of  errors  in,  335. 

lines  as  run  unchangeable,  341,  343. 

meager  instructions  given  in  early,  103. 

ORIGINAL  THIRTEEN  STATES, 
Holland  purchase,  611. 
imperfect  notes  in  surveys  of,  610. 
information  about,  614. 
lack  of  system  of  survey  of,  624. 
letter  from  State  Engineer  regarding,  615. 
Macomb's  Purchase,  610. 
manner  of  survey  of,  604. 
monuments  govern,  618. 
resurveys  of,  613,  620. 
survey  of,  609. 
triangulation  of  surveys  of,  615. 

PARALLELS  OF  LATITUDE, 

bound  north  and  south  sides  of  township,  22. 
called  township  lines,  22. 
defined,  22. 

PAROL  EVIDENCE, 

declaration  of  covenantor,  442. 
latent  ambiguity  explained  by,  435, 
natural  objects  located  by,  415. 
to  explain  description,  412. 
to  identify  monument,  413. 
to  show  boundary,  412. 
when  calls  conflict,  412. 

PATENTS, 

can  not  be  collaterally  attacked,  51. 
carry  all  riparian  rights,  275,  276,  281. 
reservations  in,  276. 


6l8  INDEX 

PENNSYLVANIA, 

adjoining  tracts,  620. 
blocks  of  surveys  of,  621. 
general  rules  in  surveys  of,  618. 
monuments  govern,  619. 
resurveys  in,  620. 
survey  of,  617. 

PIER, 

SEE  DOCKS. 

PITS, 

monuments,  220. 

on  latitudinal  lines,  228. 

on  meridional  lines,  228. 

PLANS  OF  SURVEYS, 
in  Canada,  637. 
transmitted  to  Province  in  Canada,  644. 

PLAT, 

acknowledged  by  proprietor,  581. 

as  evidence,  583. 

careful  survey  of  tract,  580. 

certificate  to,  580. 

controls  as  between  field  notes  and,  210. 

conveyance  of  vacated  street,  549. 

conveyance  on  dedicated  street,  549. 

dedication  by,  547,  5'48,  580. 

designation  on,  squares,  etc.,  548. 

essentials  of,  580. 

evidence,  240. 

governs  as  to  description,  476. 

importance  of,  545,  580. 

invalid,  referred  to,  479. 

largely  a  question  of  judgment,  210. 

lines  actually  run  control,  581. 

located  by  natural  objects,  581. 

making,  580. 

may  be  used  as  evidence,  581. 

may  not  be  admissible  evidence,  210. 

monuments,  580. 

no  dedication  by,  unless  acknowledged,  581. 

not  acknowledged  not  to  be  recorded,  581. 

not  recorded  may  be  evidence,  581. 

owners  of  lots  in,  easement  in  street,  584. 

prevails  in  description,  485. 

purpose  of  square  not  marked  on,  581. 

recording,  548,  580,  581. 

soil  of  street  does  not  pass  in  unrecorded,  241. 

space  between,  and  transferred  land,  554. 

unrecorded  may  be  evidence,  241. 

PLATTING  LAND, 

careful  survey  of  tract,  580. 
essentials,  580. 


INDEX  619 


PLATTING  *LAND— Continued. 
monuments,  580. 
recording  plat,  580,  581. 

PONDS, 

defined,  161. 

meandered,  202. 

private  rights  generally  extend  to  center,  161. 

rights  at  common  law,  161. 

rights  in  artificial  ponds,  161. 

rights  of  shore  owners,  161,  273. 

wholly  within  one  section,  203. 

PRINCIPAL  MERIDIAN, 

Ellicott's  line  in  Ohio,  97. 

first,  2. 

first  one  established,  336. 

how  established,  2,  24,  93. 

in  military  lands,  97. 

list  of,  97. 

number,  2. 

permanent  monuments  on,  93. 

testing,  93. 

PRIVATE  CLAIMS, 

amend  entry  of,  123. 

claimant  must  point  out  boundary,  122. 

conflicting  boundaries  of,  123. 

given  a  number,  122. 

improvements  on,  122. 

protest  of  claimant,  123. 

rules  for  survey  of,  123. 

shown  on  plat,  123. 

survey  of,  122. 

PROPORTIONAL  MEASUREMENTS, 
defined,  370,  377. 
determine  lost  corner  by,  78. 
example  of,  370. 
surplus  divided  by,  371. 

PUBLIC  SURVEYS, 

SEE  LAND  SURVEYING. 

approval  by  surveyor-general  necessary,  55. 

basis,  52. 

can  not  be  set  aside,  51. 

depart  from  rules  in  survey  of  tract  near  reservation,  51. 

extend  over  mineral  land,  65. 

field-notes  delivered  to  local  officer  of  state,  47. 

first  in  U.  S.,  2. 

formerly  under  contract,  44. 

governs,  60. 

in  Ohio  first  survey  ran  lines  every  two  miles  only,  56. 

lands  considered  surveyed  only  when  filed  in  local  land  office,  55. 

lands  divided  by  north  and  south  lines  and  lines  run  at  right 

angles,  51. 

lines  shall  be  plainly  marked,  51. 
made  under  authority  of  Congress,  51. 


62O  INDEX 

PUBLIC  SURVEYS— Continued. 
must  stand,  51. 

now  made  by  government  officer,  44. 
presumed  correct,  7,  10,  13,  51,  56. 
presumed  made  according  to  law,  51. 
recognition  by  government  waiver  of  irregularities,  51. 
rectangular  system,  4. 
rules  of,  45. 
settlers  may  have,  66. 
unchangeable,  45,  53. 

QUARTER  CORNER, 

east  section  five,  to  establish,  543. 

fractional  section  five,  to  establish,  514. 

north  and  west  sides  section  six,  to  establish,  521,  539. 

north  of  section  five  on  correction  line,  to  establish,  542. 

north  of  section  six  on  correction  line  to  establish,  523. 

other  than  six,  north  and  west  sides  township  to  establish,  522. 

west,  section  six,  to  establish,  539. 

west  side  section  two,  to  establish,  523. 

QUARTER  LINE, 

east  and  west  in  section  six,  to  run,  511. 

fractional  section  two,  east  part  in  lake,  to  run,  516. 

north  side  of  section  in  lake,  to  run,  512. 

one  quarter-corner  in  lake,  to  run,  511. 

section  five,  no  quarter-corner  established,  to  run,  514. 

section  six  in  fractional  township,  to  run,  512. 

two  section  corners  and  one-quarter  corner  only  established,  to 

run,  515. 
west  quarter-corner  interior  section  in  lake,  to  run,  513. 

QUARTER-QUARTER  CORNERS, 

fractional  section,  north  of  center,  to  establish,  544. 

in  fractional  section,  to  establish,  519. 

midway  between  section  and  quarter  corner,  45. 

north  and  west  tiers  of  sections,  45. 

west  half  section  six,  to  establish,  520. 

QUARTER  SECTIONS, 

area  of  less  than  160  acres,  340. 
how  sub-divided,  340,  341. 
irregular  in  Canada,  632. 
provision  for,  340. 
subdivision  of,  368. 
subdivision  of  fractional,  369. 

QUARTER  SECTION  CORNERS, 

established  by  government  surveyor,  35. 

how  marked,  228. 

how  re-established,  35. 

lines  closing  on  north  boundary  of  township,  115. 

lines  closing  on  west  boundary  of  township,  115. 

midway  between  section  and  quarter  corner,  45. 

north  and  west  tiers  of  sections,  45. 

on  closing  lines,  restoration  of,  355. 


INDEX  621 

QUARTER  SECTION  CORNERS— Continued. 

on  township  boundaries,  restoration  of,  354. 
presumed  correct,  35. 
restoration  of  interior,  356,  378. 
where  established,  35. 
where  placed,  115. 

RANDOM  LINES, 

bushes  may  be  cut  on,  214. 
not  to  be  blazed,  108,  212,  214. 
unlawful  to  blaze,  214. 

RANGES, 

how  read,  28. 
numbering  of,  24,  28,  97. 

RECORDS, 

of  original  surveys,  364. 

RECTANGULAR  SYSTEM, 

departure  from  in  California,  04. 

departure  from  in  Nevada,  69. 

first  one  in  Ohio,  337. 

first  used  in  United  States,  2. 

initial  point  of,  91. 

in  state  of  Ohio,  97. 

modification  of,  340. 

must  have  initial  point,  90,  91. 

not  used  in  thirteen  original  states,  20,  90. 

used  in  public  surveys,  4. 

when  established,  336. 

RELICTION, 
defined, 

how  determined,  251,  310. 
rules  for  division,  254. 

REPUTATION, 

not  generally  evidence  as  to  private  boundary,  231. 
private  boundaries  by,  232. 

RESURVEYS, 

finished  at  certain  point,  140. 
initiated  at  certain  point,  140. 
monument  corners,  123. 
rules  for,  123. 

REVERSION, 

court  can  not  extinguish  right  of,  550. 

importance,  550. 

of  dedicated  property,  550. 

REVULSION, 

boundary  unchanged  by,  321. 
how  determined,  310. 


622  INDEX 

RIPARIAN  OWNERS 

along  dedicated  street,  271. 
along  Mississippi  river,  252,  293. 
as  to  islands,  308. 
can  not  obstruct  navigation,  265. 

case  of  fraud  or  mistake  in  Wisconsin  takes  to  next  govern- 
ment line,  281. 

consideration  of  McBride  v.  Steinweder,  249. 
consideration  of  Peuker  v.  Canter,  249. 
consideration  of  Welles  v.  Bailey,  2'49. 
criticism  of  extreme  decisions,  249. 
division  between  owners  to  navigable  water,  248. 
division  of,  in  straight  stream,  261. 
entitled  to  all  accretion,  315. 
entitled  to  flats,  270. 
entitled  to  use  of  bed  of  waters,  262. 
entitled  to  whole  stream,  247. 
equitable  division  between  owners,  170. 

follows  receding  waters,  244,  245,  255,  258,  273,  275,  280,  196,  198. 
free  access  to  navigable  waters,  265. 
has  dock  privileges,  265,  277,  287. 
in  England,  303. 

in  Illinois  to  thread  of  stream,  244. 
in  non-navigable  lakes,  277. 

in  Wisconsin  on  Mississippi  river  to  "thread  of  stream,"  168. 
lines  of  division  of  rights  generally  coverge,  255. 
low  land  within  meander  line,  262. 
may  be  excluded  in  Pacific  Coast  states,  247. 
may  lose  by  washing  away,  244. 
may  take  only  to  meander  line,  207. 
Bot  along  park  or  reservation,  197. 
not  restricted  to  meander  line,  170. 
not  where  water  not  boundary,  299. 
on  lakes,  311. 
on  navigable  streams,  295. 
on  streams,  311. 
otherwise  sudden  change,  196. 
owns  land  made  by  gradual  means,  245,  258. 
qualified  right  in  some  streams,  168. 
regaining  land  once  lost  to,  267. 
rights  apportioned  to,  255,  282. 
rights  in  Pacific  Coast  states,  247. 
rights  of,  315. 

rights  of,  governed  by  state,  303. 
rights  of  may  depend  on  fraud,  207. 
rights  of  may  depend  on  mistake,  207. 
rights  to  extend  to  "thread  of  stream,"  168. 
rights  of  states  as  to  boundaries,  same,  250. 
rights  to  keep  to  water,  170. 
state  law  defines  rights  of,  247,  287,  314. 
takes  land  by  dereliction,  245. 
takes  land  by  reliction,  245. 
takes  submerged  land,  263. 
takes  to  nearest  subdivision  line,  207. 
under  certain  description,  311. 
vested  rights  of,  244. 
where  highway  intervenes,  311. 


INDEX  623 


RIPARIAN  RIGHTS, 

apply  to  all  streams,  244. 

apportioned,  255. 

between  meander  line  and  water,  257. 

by  dereliction  or  reliction,  245. 

conveyance  to  water  carries,  509. 

conveyed  by  Government,  242,  244. 

data  on,  243. 

division  lines  generally  converge,  255. 

division  of  among  owners,  242,  254,  259,  279,  305. 

division  of  in  lakes,  277,  280. 

division  of  in  stream  and  lake  differ,  263. 

docks  and  piers,  242,  243,  248,  259,  265,  276. 

each  state  determines,  276. 

equitable  rights  of,  273. 

extend  to  thread  of  stream  in  Illinois,  244. 

extent  of,  312. 

follows  receding  waters,  244. 

imperceptible  change  of  shore,  242,  249. 

important  and  valuable,  242. 

in  beds  of  dried  up  lakes,  242,  273. 

in  ice,  282. 

in  large  lakes,  302. 

in  non-navigable  lake,  280. 

in  non-navigable  stream,  278. 

line  remains  stationary  sudden  changes,  245. 

loss  by  washing  of  waters,  2'44,  249. 

may  build  wharves,  551. 

no  general  rule  in  division  of,  243. 

none  where  space  between  boundary  and  water,  283. 

on  long  lake,  255,  277,  322,  323. 

on  navigable  lakes,  277. 

on  round  lake,  255,  277. 

on  straight  stream,  261. 

on  streams  and  lakes,  311. 

owner  takes  to  center  of  stream,  551. 

partial  enumeration  of,  242. 

release  of,  312. 

reservation  of,  312. 

ruled  by  each  state,  247. 

rule  for  division  of,  254,  259,  261,  273,  278,  308. 

run  to  center  in  non-navigable  lakes,  256. 

shape  of  shore  line,  243. 

sudden  change  of  shore  line,  242,  245. 

to  accumulations  on  shore,  289. 

to  accumulations  to  bottom,  289. 

to  center  of  stream  in  Michigan,  317. 

valuable  appurtenant,  374. 

vested,  244. 

water  must  be  boundary  to  give,  299. 

where  dividing  line  is  perpendicular  to  shore,  261. 

where  highway  intervenes,  311. 

where  meander  and  shore  differ,  279. 

RIVER  BED, 

at  common  law  in  sovereign,  200. 


624  INDEX 

RIVERS, 

jurisdiction  of  in  boundary,  423,  424. 

ROAD  ALLOWANCE, 
in  Canada,  626. 
in  Canada  taken  into  account,  643. 

SALES, 

fractional  sections  of  exact  acreage,  51. 
of  public  land,  37. 

selection  only  attaches  after  legal  survey,  51. 
state  can  not  sell  lands  not  surveyed,  51. 

SECTIONAL  GUIDE  MERIDIANS 
purpose  of,  125. 
when  established,  125. 

SECTION  CORNERS, 

common  to  four  sections  town  line,  to  establish,  525. 
common  to  two  sections  town  line,  to  establish,  526. 
illustration  of  procedure,  524. 

interior,  common  to  four  sections,  to  establish,  524. 
restoration  of  interior,  353. 

SECTIONS, 

area  returned  conslusive,  56. 
containing  less  than  160  acres  not  divided,  37,  39. 
contents  of,  340. 

deficiency  taken  from  north  and  west  of  township,  34. 
designation  of  corners  of,  41. 
designation  of  subdividing  corners,  42. 
dividing  into  quarters,  340. 

excess  added  to  sections  on  north  and  west  of  township,  3'4. 
fractional  subdivided  into  lots,  39. 
half  quarter  sections,  how  run  out,  61. 
how  numbered,  337. 
line  between  sections  one  and  two,  104. 

line  between  sections  one  and  two  adjacent  to  base  or  correc- 
tion line,  104. 

line  between  35  and  36,  107. 

location  and  numbering  in  township,  2,  30,  33,  51. 
meridional  lines  north  tier  of,  104,  105. 
meridional  lines  of,  102,  104,  106. 
not  square,  20. 

on  north  and  west  sides  of  township,  338. 
originally  numbered,  30,  32. 
rules  as  to  subdividing,  340. 
size,  2,  20,  29. 

subdividing  into  half -quarters,  37. 
subdividing  into  half  sections,  34. 
subdividing  into  quarter  sections,  35,  37,  39,  366. 
subdivision  of,  365,  340,  341. 
subdivision  of  in  Canada,  640. 
to  subdivide  interior  section,  513. 
to  subdivide  section  five,  514. 
to  subdivide  section  in  fractional  township,  515. 


INDEX  625 


SECTIONS — Continued. 

to  subdivide  section  six,  511,  512. 

to  subdivide  two,  east  part  in  lake,  516. 

SETTLERS, 

deposit  of  expenses  by,  67. 

deposit  to  apply  on  land,  68. 

in  good  faith  protected,  70. 

may  have  omitted  land  surveyed,  66. 

may  have  survey,  66. 

must  make  deposit,  66. 

rights  in  unsurveyed  lands,  70. 

SHALLOWS, 

property  in,  290. 

SHOALS, 

property  in,  290. 

SHORE, 

division  of  by  shortest  course,  309. 

division  of  irregular,  307. 

equitable  division  of,  306. 

how  determined,  260. 

meaning  of,  260. 

on  navigable  streams,  311. 

on  non-navigable  streams,  311. 

rules  for  division  of,  306. 

straight  division  of,  308. 

SINGLE  PROPORTIONATE  MEASUREMENT, 
defined,  139,  370,  377,  378. 
example  of,  370. 
how  used,  349. 
illustration  of,  124. 
in  locating  lost  corner,  124,  132,  133. 
meander  corners,  138. 
reliable,  139. 
surplus  divided  by,  371. 
used  in  closing  lines,  132. 
when  used,  378. 

SIXTEENTH  QUARTER  SECTION  CORNER, 
rule  in  Wisconsin,  175. 
to  establish  in  north  tier  of  sections,  175. 

SOLAR  COMPASS, 

not  used  in  old  surveys,  24. 
used  in  all  public  surveys,  6,  24. 

STANDARD  CORNERS, 

controlled  by  corners  used  in  original  survey,  347. 

defined,  347. 

restoration  of,  393. 

restored  by  proportional  measurement,  378. 

to  establish,  529. 


626  INDEX 

STANDARD  PARALLELS, 

bases  for  townships  to  north,  27,  94. 

care  in  running,  94. 

corner  on  re-established,  343. 

distance  apart,  94. 

early  surveys,  95. 

how  established,  2,  27,  94,  98. 

STANDARD  SECTION  CORNERS, 
common  to  four  sections,  225. 
common  to  two  sections,  226. 
how  marked,  223,  225,  226,  227. 

STANDARD  TOWNSHIP  CORNERS, 
how  marked,  219. 
should  be  marked,  219. 

STATES, 

as  to  accretion,  295. 

as  to  which  exercise  jurisdiction,  421. 

between  acquiescence  of,  252. 

between  states,  boundary  a  stream,  252. 

between  two,  boundary  unchanged  in  avulsion,  2*46,  251. 

boundaries  found  in  statutes,  421. 

boundaries  of,  fixed  by  Congress,  421. 

boundaries  of  original,  421. 

boundary  between,  293,  310,  420,  425. 

boundary  between  Missouri  and  Nebraska,  286. 

boundary  between  Wisconsin  and  Michigan,  252. 

boundary  follows  changes  in  streams,  425. 

boundary  unchanged  in  avulsion,  244,  246,  251. 

center  of  stream  generally  boundary,  424,  425. 

each  state  determines  riparian  rights,  276. 

evidences  to  boundary  of,  425. 

gradual  change  of  boundary,  250. 

judicial  notice  of  boundary,  424. 

jurisdiction  between,  424. 

Kansas,  251. 

Kentucky,  246. 

laws  determining  riparian  rights,  324. 

Missouri  and  Nebraska,  246,  286. 

own  beds  of  Great  Lakes,  425. 

own  beds  of  navigable  streams  sometimes,  303. 

riparian  owner  takes  beds  of  streams  sometimes,  303. 

sudden  change  of  boundary,  251. 

STREAMS, 

at  common  law,  164. 

at  common  law  bed  in  sovereign,  200. 

bed  in  non-navigable,  163. 

beds  of,  160. 

beds  of  in  some  states  property  of  riparian  owner,  160,  164,  166. 

beds  of  in  some  states  property  of  state,  160,  164. 

every  change  of  a  natural  one,  249. 

gradual  changes  in  245,  249. 

improvements  under  federal  control,  63. 


INDEX  627 


STREAMS — Continued. 

in  some  states  takes  to  bank,  167. 

islands  located  in,  204. 

low-water  mark  boundary  in  some  states,  166. 

meandering  along  dangerous,  199. 

navigable,  160. 

navigable,  are  public  ways,  163. 

navigable  under  control  of  state,  63. 

non-navigable,  160. 

no  reservation  in  patent,  168. 

on  Mississippi  to  "thread  of  stream,"  168. 

on  Mississippi  water's  edge,  the  boundary,  167. 

owners  take  to  "thread  of  stream,"  168. 

rights  in,  determined  by  state,  165. 

rights  of  proprietors  on,  160,  163. 

shallow,  not  meandered,  199. 

state  controls,  170. 

sudden  changes  in,  2'45. 

"tide  water"  to  be  meandered,  199. 

to  high-water  mark,  160. 

to  low-water  mark,  160. 

to  "thread  of  stream,"  160,  168,  170. 

under  jurisdiction  of  state,  160,  164. 

water's  edge  the  boundary  in  some  states,  167. 

what  are  navigable  in  United  States,  164. 

what  were  navigable  at  common  law,  164. 

when  meandered,  199. 

STREET, 

conveyance  of  vacated  street,  549. 
conveyance  on,  after  vacation,  549. 
conveyance  on,  before  vacation,  549. 
dedication  of,  545,  580,  581. 
dedication  of  by  estoppel,  581. 
non-user  of,  607. 
vacated,  549. 

SUBDIVISION  OF  SECTIONS, 

SEE  "EXCESS,"  "DEFICIENCY,"  "LOST  COBNEBS." 

in  fractional  townships,  131,  134,  137. 

into  quarters,  131,  135. 

must  be  according  to  federal  law,  128. 

must  know  boundaries  of  section,  130. 

of  fractional,  134. 

procedure  in,  130. 

where  "mean"  line  can  be  run,  131. 

where  one  side  lacking,  131. 

SURPLUS, 

in  Canada,  631. 

in  township  in  Canada,  646. 

SURVEY, 

acquiescence  in  erroneous,  564. 
constructing  improvement  according  to,  563. 
difficulties  in,  610. 
fraudulent,  274,  255,  281,  390. 


628  INDEX 

SURVEY — Continued. 

improvement  on  systems  of,  610. 

in  Canada,  ch.  XXVII. 

made  under  state  law,  389. 

manner  of,  609. 

monuments  to,  389. 

not  bound  by  mistake  in,  563,  564* 

occupying  to  line,  567. 

of  Macomb  Purchase,  610. 

original  thirteen  states,  609. 

party  may  be  bound  by,  563. 

penalties  for  molesting  in  Canada,  645. 

SURVEYOR  GENERAL, 

act  merely  directory,  51. 

appointment  of,  33. 

discretion  in  subdividing  fractional  sections  containing  over  160 

acres,  51. 
duties  of,  51. 
duties,  on  completion  of  survey,  devolves  on  commissioner  of 

land  office,  48. 
instructions,  1. 

may  appoint  agent  to  inspect,  51. 
must  direct  survey  of  private  land  claims,  51. 
must  direct  survey  of  public  lands,  51. 
must  inspect  surveying  operations,  51. 

SURVEYORS, 

action  for  slander  and  libel  by,  579. 

agreement  as  to,  556,  564. 

as  an  expert,  578. 

as  a  witness,  573. 

assent  to  mistake  of,  556. 

competent  witness,  231. 

declaration  by  referring  to  corner,  231. 

declaration  when  surveyor  not  on  ground,  231. 

declarations  of,  231,  399,  410. 

declarations  of  opinion  not  evidence,  231. 

declarations  of,  since  deceased,  400,  410,  418. 

declarations  of  to  contradict  record,  403. 

degree  of  care  required  by,  575,  576. 

degree  of  care  to  be  exercised  by,  573. 

depositions  of  deceased,  231. 

deposition  of  deceased,  as  evidence,  416. 

determination  by,  not  final,  564. 

execute  surveys  according  to  law,  84. 

exercise  originality,  85. 

field  notes  must  be  authenticated,  231. 

field  notes  of,  as  declarations,  231. 

government  will  not  issue  instructions  to  local,  74. 

knowledge  of  original  survey,  331. 

liability  for  negligence,  574. 

liability  of  fixing  boundary,  574. 

may  get  instructions,  74. 

may  testify  as  to  declarations  of  old  residents,  402. 

may  use  records  to  refresh  memory,  401. 


INDEX  629 


SURVEYORS— Continued. 

not  bound  by  line  run  by,  561,  563. 

not  estopped  by  acts  of,  564. 

not  liable  for  excess  of  land  parted  off,  577. 

one  party  constructing  improvements,  563. 

parties  not  bound  by  mistake  of,  556,  563,  564. 

private  and  public  liable,  575. 

private  under  different  instructions,  330 

should  be  free  from  influence,  84. 

should  secure  original  instructions,  86. 

special  rules  in  resurveys,  102. 

testimony  as  to  custom,  578. 

testimony  of,  411. 

testimony  of  deceased  surveyor,  404. 

to  exercise  ingenuity,  413. 

what  surveyor  said  as  evidence,  231. 

TACKING  POSSESSION, 

what,  how,  effect,  596. 

TOWN  PLATS, 

invalid,  458. 

not  recorded,  440. 

TOWNSHIP  CORNERS, 

common  to  four  townships,  restoration  of,  350. 
common  to  four  townships,  to  establish,  530. 
common  to  two  townships,  restoration  of,  351. 
double  proportionate  measurement,  350. 

TOWNSHIPS, 

auxiliary  base  for,  116. 

boundaries  of,  in  Canada,  627. 

closing  corners  in,  11,  114. 

designation  of  corners  of  sections  in,  41. 

direction  of  township  lines  in,  105. 

discrepancies  in  lines  of,  noted,  103. 

early  surveys  of,  105. 

errors  thrown  to  north  and  west  sides  of,  338. 

form  and  size,  2,  25,  27,  29,  32. 

forming,  99. 

forming  into  south  of  base  line,  101. 

how  run  out,  96,  99. 

impassable  objects  on  lines  of,  96. 

impassable  objects  on  south  boundary,  116. 

in  first  survey,  338. 

latitudinal  lines  of,  run  east  and  west,  96. 

line  between  25  and  36  in,  108. 

line  between  35  and  36  in,  107. 

line  between  sections  1  and  2,  110. 

lines  of  sections  lying  north  of,  36,  109. 

may  be  subdivided  from  north  to  south,  117. 

may  be  subdivided  from  west  to  east,  117. 

meridional  boundaries  of,  take  precedence,  96. 

meridional  lines  of,  run  south  to  north,  96. 

meridional  section  lines  in,  104,  105,  106. 

miscellaneous  suggestions  in  subdividing,  1M. 


630        ,  INDEX 

TOWNSHIPS— Continued. 

narrow  across  north  side,  25. 

noting  falling  in  running  subdivision  lines,  108. 

numbering,  2,  30. 

numbering  of,  in  Canada,  627. 

quarter  corner  between  1  and  2  in,  110. 

random  of  latitudinal  lines  in,  113. 

randoms  in  subdividing,  105. 

retracing  township  lines,  103. 

running  fifth  range  of  sections  in,  112. 

running  random  latitudinal  lines,  96. 

running  sixth  range  of  sections  in,  112. 

sections  in,  2,  31. 

sections  on  the  west  boundary  of,  105. 

size  at  first,  seven  miles  square,  31. 

south  townships,  101. 

subdividing  in  Canada,  647. 

subdividing  into  sections,  103,  107,  108,  51. 

taken  from  24  mile  tracts,  96. 

townships  adjacent  to  reservations,  117. 

when  north  boundary  of  section  is  base,  or  correction,  111. 

TREBLE  CORNERS, 

error  now  permitted,  335. 

in  early  surveys,  333. 

on  range  line,  to  establish,  535. 

on  range  line  where  all  are  missing,  to  establish,  536. 

on  town  and  range  lines,  333. 

to  restore  all  on  range  line,  361. 

to  restore  either  on  range  line,  360. 

when  established,  333. 

TRIANGULAR  SURVEYS, 

triangulation  of  old  states,  615. 

TRIANGULATION, 

in  original  thirteen  states,  90. 

TRUE  MERIDIAN, 

how  determined,  103. 

USER, 

defined  as  to  highway,  601. 
highway  by  superseding  laid  out,  601. 
on  wild  and  unoccupied  lands,  601. 

VACATION, 

by  non-user,  604,  606. 
of  highway,  603. 

WATER  FRONTAGE, 
re-survey  of,  38. 

special  survey  of,  may  be  ordered,  38,  63. 
tracts  surveyed  two  acres  in  width,  38,  63. 

WHARVES, 

SEE  DOCKS. 


INDEX  631 

WISCONSIN, 

boundary  of,  421. 

crime  committed  on  Mississippi  river,  424. 
jurisdiction  of  boundary  waters,  423,  424. 
jurisdiction  of  islands  in  boundary  waters,  422. 
sovereignty  extends  to  center  of  Lake  Michigan,  425. 

WITNESS  CORNERS, 

at  brink  of  impassable  cliffs,  119,  215. 

at  margin  of  marsh,  119. 

how  located,  118. 

mark  inaccessible  regular  corners,  206. 

marking  unsurveyable  lands,  206. 

planted  near  in  accessible  corner,  118. 

to  meander  corner,  205. 

where  regular  lines  can  not  be  extended,  119. 

WITNESS  MOUND, 

how  built,  217,  218. 
size,  218,  219. 

WITNESS  POINTS, 

to  mark  impassable  object,  215. 

WITNESS  TREES, 

not  a  corner,  392. 


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